Michigan Children's Law Blog

Legislative Update

Below are some of the bills impacting Children’s Law we are following in the legislature along with links to the bills and bill summaries:

• HB 4118 - Gives special consideration for relatives in foster care placement.
• HB 4314 – Requires appointment of attorney in juvenile delinquency cases under (2)(a) and (d).
• HB 4518, HB 4596 – Repeal of Juvenile Lifer Law.
• HB 5174, HB 5175, HB 5482, HB 5483, HB 5484, HB 5485, HB 5486, HB 5487, HB 5488, HB 5489 – Juvenile competency procedures (Note: HB 5174 is not connected to the other bills).
• HB 5676 – Michigan Public Defense Act would create a statewide system of public defense.

I will do my best to continue to update you on these bills as information becomes available to me.

Weapons Charges Against 10 year old Boy

A 10 year old Detroit boy accused of bringing an unloaded handgun to school was charged with a number of weapons violations in Wyane County Family Court.  The incident occurred on January 20, 2010, when another student saw the boy with the gun in a bathroom at Brewer Elementary/Middle School and told a teacher. The teacher took the gun.

The juvenile pleaded guilty last week to possession of a weapon in a weapons-free school zone.   The Wayne County Prosecutor issued a release today that a concealed weapons charge and a charge of minor in possession of a firearm in public have been dropped.

This is a little more than a case of “boys will be boys.”

Detroit News: Child poverty, neglect on rise in Michigan

On January 12, 2010, The Detroit News ran an article with the headline “Child poverty, neglect on rise in Michigan.”   The article summarizes some of the results of the annual Kids Count Report.  Some of the facts in the article include:

• 40% of Michigan School children are eligible for free or reduced lunches, up from 30.7% in 2000.
• In Oakland County, 11% of children are in poverty, compared with 8.6% in 2005.
• Statewide, 1 in 5 children live in poverty.
• Poverty is tied to a 16 percent increase in confirmed cases of abuse and neglect since 2000.
• Childhood deaths are down with 18.9 deaths per 100,000 children ages 1 to 14, down from 23.1 in 2000.
• The infant mortality rate is down at 7.8 deaths per 1,000 infants from 8.1 in 2000.
• The rate of births to teens fell 20 percent over the decade.

The article correctly points out that increased poverty leads to increased instances of abuse and neglect because parents can’t provide for their children’s basic needs or take out their frustrations for their economic troubles on their children.  It is interesting that in Oakland County, where poverty is on the rise, petitions seeking court jurisdiction over abused and neglected children are down.  Based on the correlation between poverty and child abuse and neglect, shouldn’t we see more petitions being filed?

Some attribute the cause of the lower filings on the fact that the new Oakland County prosecutor no longer co-petitions with DHS in child neglect matters.  Under this reasoning, the filings are down because DHS was being pressured into filing petitions by the previous prosecutor and the reduction is the result of DHS no longer filing petitions they consider unnecessary.  Another theory is that DHS has hired new staff and this staff is being retrained.  Whatever the cause, I find it hard to believe in these difficult economic times that child abuse and neglect is on the decline as the decrease in petition filings would suggest.

You can read the Detroit News Article here:  Child poverty, neglect on rise in Michigan.

CARE House may be expanding/relocating

The Oakland Press reports that CARE House in Pontiac may be expanding their facility.  CARE House has submitted a request to the Pontiac City Zoning Board to re-zone property that includes the now closed Ducky’s Bar on Woodward between Earlmoor Boulevard and Nebraska Avenue.  If approved, CARE House, who already owns the property, plans to demolish the bar and its own facility to build a new building at the location.

Most of us who do child abuse and neglect work in Oakland County are very familiar with CARE House.  CARE House provides advocacy, prevention, intervention and treatment services to children who have suffered abuse and neglect.  They also conduct forensic interviews of children who are alleged to have suffered abuse and neglect.   According to the Oakland Press, CARE House has declined to talk about the plans publicly, but hopefully these new facilities will provide better rooms to conduct the forensic interviews also.  I am sure we will be hearing more about this if and when the zoning plan is approved.

You can check out the Oakland Press article here:  CARE House hopes to tear down Pontiac bar, build new facility

USDOJ Report on Sexual Assaults in Youth Detention Centers

Earlier this month, the U.S. Department of Justice released survey results regarding sexual assaults in youth detention centers in Michigan.  The data is based on anonymous surveys issued to children in youth detention centers.  The survey revealed that nearly one in four kids said they had been sexually assaulted.  All of the assaults reported were perpetrated by other inmates.  No staff members were implicated in the assaults.  I have excerpted the data from Michigan in the table below:

These results are very alarming.  The offenders in these facilities are there for very serious offenses, which increases the likelihood of these incidents.  However, these facilities must do a better job protecting these children.

You can view the full report here: U.S. Dept. of Justice Survey

Oakland Press Editorial – Oakland County Prosecutor needs to take lead on fighting juvenile crime

Last week (Thursday, January 14, 2010), the Oakland Press published an editorial criticizing Oakland County Prosecutor Jessica Cooper for not being tougher on juvenile offenses.   Ms. Cooper states that there has been an increase in serious juvenile crimes in the county “mainly because of gang activity in Pontiac and in the southern part of the county.”  She adds that the increased serious crimes, budget problems and staffing shortages result in other juvenile cases not getting turned around as quickly.

The article reports that the prosecutor did not follow through on an assault complaint in Waterford Township in which a female teen hockey player struck another player on December 5, 2010.  The father of the victim in the matter is apparently upset because the other player is permitted to continue participating in sports.  The school district has denied the father’s request that the school take immediate disciplinary action, suspend the player and remove her from all sports teams and athletic events.  There was no report that the victim was injured.  Yet, the Oakland Press feels the need to “question why Cooper seems to be taking such a casual approach to an apparently serious incident.”  The report then goes on to criticize the prosecutor for not communicating her actions on juvenile offenses to the public.

Am I wrong here or is this report overly harsh on the prosecutor?  First, I think it would be hard to argue that the prosecutor should give the same  priority to a simple assault as she does a more serious crimes like Armed Robbery.  A good prosecutor should direct her resources to the most serious crimes first.  Second, I am not sure how much she should communicate the rationale behind the use of her prosecutorial discretion.  There are ethical rules that  prohibit her from making public communications that would have a “substantial likelihood of materially prejudicing an adjudicative proceeding .” MRPC 3.6.   Finally, perhaps this issue was better left to the local school board, who did not find the offense serious enough to take action, to discipline the child, rather than as a juvenile delinquency matter.

You can read the Oakland Press Editorial here.

In Re MKK

When you have a putative father attempting to file for paternity during the pendency of an adoption, which should come first?  This  issue was addressed by the Court of Appeals in In re MKK.

The putative father filed a paternity action seeking an order of filiation at or around the same time the child’s maternal aunt and uncle filed a petition to adopt the child.  The trial court denied putative father’s motion to stay the adoption proceedings and stayed the paternity action pending the conclusion of the adoption proceedings.

Paternity tests revealed a 99.99% probability he was the natural father.  Ultimately, the trial court concluded that it was not in the child’s best interests to grant custody to putative father under MCL 710.39(1).  The trial court also concluded that placement with the uncle and aunt was not in the child’s best interests and denied the adoption petition in light of the fact that the parents live nearby in a small community. Both parties appealed.

Naturally, father wanted the paternity action heard first because once an order of filiation was entered and he is considered a parent, termination of his parental rights can generally only be accomplished in cases of neglect or abuse under MCL 712A.19b.  See In re LE, 278 Mich App 1, 19, 22; 747 NW2d 883 (2008).   It is far easier to terminate parental rights of a putative father under MCL 710.39 in the Adoption code.

Putative father argued that he was denied both procedural and substantive due process by his application of the Adoption Code and decision to stay his paternity action until the completion of the adoption.  The Court of Appeals framed its analysis in terms of statutory construction rather than constitutional considerations.  The Court acknowledged that adoption proceedings must be completed as quickly as possible and, in general, be given priority on the court’s docket.  MCL 710.21a(c) and (d); MCL 710.25(1).  However, the Court also noted that under MCL 710.25(2) “an adjournment or continuance of a proceeding under this chapter shall not be granted without a showing of good cause.”  Thus, there may be circumstances in which a putative father may be able to present good cause to delay the adoption proceedings.  The court wrote, “in cases such as this, where there is no doubt that respondent is the biological father, he has filed a paternity action without unreasonable delay, and there is no direct evidence that he filed the action simply to thwart the adoption proceedings, there is good cause for the court to stay the adoption proceedings and determine whether the putative father is the legal father, with all the attendant rights and responsibilities of that status.  Upon a motion to stay adoption proceedings, the trial court must make a good cause determination based on the particular circumstances of the case.”

The Court was very careful to state that they were not creating a bright line test that would lead to a “‘race to the courthouse,’ where a paternity takes precedence over an adoption proceeding merely because the paternity action was filed first.”  This gives the court some discretion in the good cause finding.

The Court also reasoned that the general presumption that it is in the child’s best interests to be in the custody of their natural parent or parents allows the court to give priority to a paternity action over an adoption.

You can view or download the opinion here: In re MKK

In re HRC et al. – in camera interviews

The Court of Appeals issued another published opinion.  The case involved whether the trial court may conduct unrecorded in camera interviews with minor children to determine best interests.  The CoA held that a trial court may not conduct in camera interviews with minor children in a juvenile proceeding.

In this case, following a hearing on a petition to terminate parental rights, which contained testimony regarding both statutory basis for termination and best interests, the trial court indicated it was not prepared to make a best interests determination.  The trial court conducted in camera interviews with all of the children.  Subequently, the trial court found termination was in the children’s best interests without making reference to the types of questions asked or the information disclosed by the children.

An in camera interview is an ex parte communication off the record in a judge’s chambers and in the absence of the other interested parties and their attorneys.  Generally, these ex parte communications are not permitted except as provided by law.  Michigan Code of Judicial Conduct, Cannon 2.   The Court of Appeals ruled there is no statutory provision or other caselaw that permits a trial court in a juvenile proceeding to conduct an in camera interview.    The Court distinguished juvenile proceedings from custody proceedings under the Child Custody act, which does contain a provision for in camera interviews with children for a very limited purpose. MCL 722.21.  Without an analogous provision in juvenile law, such interviews are impermissible.

The Court also found that the use of unrecorded in camera interviews in termination proceedings violates parents’ due process rights.  Due process requires fundamental fairness, which will involve consideration of the private interest at stake, the risk of erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedures and the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993).   The Court balanced the parent’s fundamental liberty interest in the care and custody of his or her child and the threat of permanently losing that interest against the state’s interest in the welfare of the child. The Court also considered the risks of an erroneous deprivation of parental rights given the nature of the in camera interview in light of the low probative value of the in camera procedure and the risk of unduly influencing a judge’s decision.  The Court ruled that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.

The Court remanded the case to a different trial court judge to make findings as to each child’s best interests before deciding to terminate parental rights.

You can view or download the case here: In re HRC, et al

HB 5676 – Michigan Public Defense Act

This week Michigan State Representatives Constan and Amash introduced HB 5676, which would create the Michigan Public Defense Act.  The bill has been referred to the Judiciary Committee in the State House.  It would create a statewide public defense system that includes representation for juvenile delinquents.

Here is a summary of the highlights of the bill with an emphasis on juvenile defenders:

• A state-wide public defender service would be created to provide public defense throughout the state.
  • The state service would provide defense for indigent criminal defendants and juvenile respondents.
  • The bill would allow for contract public defense services.
  • Indigence would be defined as having an income not more than 133% of the federal poverty level.
  • Juvenile indigence would be determined by whether the parents would be eligible for public defense services or if they are unwilling to retain counsel to represent the juvenile.
• A public defense commission would be established to create policy for the state system.
  • The commission would consist of 9 members appointed by the governor.
  • At least one member would have experience representing juveniles in delinquency proceedings.
• A state office of public defense would be created within the judicial branch to administer the system.
  • The state public defender would be appointed by the commission to head the office of public defense.
  • All state public defender employees would be considered employees of the judicial branch.
  • Compensation for full-time public defenders and staff would not be less than the compensation of assistant prosecutors and staff with comparable duties in the region.
• Regional offices would be created under the supervision of a regional public defender.
  • The state public defender would establish regional offices headed by regional public defenders.
  • The bill would allow for contract public defense offices also.
• The bill would create an appellate bureau, headed by a chief appellate defender, to oversee appellate defense.

This bill is a step in the right direction.  I would have liked to have seen inclusion of LGALs and parent representation in child protective proceedings, but these budget times do not allow us to be greedy.

I think the political reality is that the state must adopt some sort of public defense system before the Federal government imposes one.  I doubt Lansing wants Washington to force its hand.  This may motivate the state legislature to take some action on this.  There is additional pressure because the U.S. Justice Department is considering a lawsuit over Michigan’s public defense system.  However, I would not expect the state to act too quickly on this.  The introduction of this legislation may be intended to stall the Federal government (a sub-committee of the U.S. House held hearings on Michigan’s public defense system – or lack of – earlier this year).  The legislature may play a game of kick the can with this legislation as long as it can get away with it.

MIRS, a well-respected Capitol newsletter, reports House Judiciary Chair Rep. Mark Meadows intends to have the legislation passed on the floor in February.  According to Rep. Meadows, the biggest concern is cost.  The goal is to make it expense-neutral for the state.  Currently, counties foot the bill.  Thus, funding would have to come from the counties.

Does anyone have any thoughts on the public defender model of indigent representation? Leave your comments.

You can follow the bill here: HB 5676

Graham v. Florida; Sullivan v. Florida – Life Imprisonment for Juveniles

Last month the United States Supreme Court heard oral argument on two cases addressing whether juveniles may be sentenced to life imprisonment – Graham v. Florida and Sullivan v. Florida. Joe Harris Sullivan, now 33,  was sentenced to life in prison at age 13 for raping a 72-year-old woman in Pensacola, Florida.  Terrance Jamar Graham was 16 when he robbed a restaurant in Jacksonville.  Both prisoners had long rap sheets before they received life sentences.  The issue before the court in these cases is whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.

Based on the questions and statements by the justices at oral argument, it appears the Court is divided along the typical right / left lines.  Those on the left are looking for a bright line test similar to the one established by the Supreme Court in Roper v. Simmons in 2005, whereby juveniles under the age of 18 could not be sentenced to death.   Those justices on the right, represented by Justices Alito and Scalia, simply do not believe the Eighth Amendment makes any distinctions regarding age.  Justice Roberts proposed requiring trial judges to take age into account before sentencing juvenile offenders to life without parole, a compromise stand that appeared aimed at winning over Justice Anthony Kennedy, who usually is the swing vote on this Court.

The arguments that life sentences for juveniles in non-homicide cases is based on the premise that the punishment does not fit the crime because juveniles are not as culpable for their actions as adults.  This is because of the development of the juvenile brain and life in prison denies any chance at rehabilitation.  The opposing side takes the view that punishment is not the only thing to be considered in criminal sentencing.  The Court must also consider retribution, or the public’s right to punish the juvenile severely for particularly heinous crimes. By closing the door on life imprisonment, the public is denied the opportunity to impose this severe sanction.

Aside from the punishment vs. retribution argument, there is also the issue of whether the Court should adopt bright line tests.  Chief Justice Roberts argues judges should balance the child’s age against the heinousness of the crime.  Both the left and the right see the issue as an all or nothing proposition.  For the juvenile practitioner, it is easy to jump on to Chief Justice Roberts’ totality of the circumstances approach.  We understand that each child’s rate of development is different and we are accustomed to using expert evaluations to determine what level of understanding the child had of his or her crime and what treatment methods would be most effective to rehabilitate the child.  However, we must also be aware of the fact that making case-by-case determinations result in wildly different approaches.  This undermines the predictability that is critical in our system of justice.

These cases clearly have implications on Michigan Law.  Under MCL 712A.18(m), in designated cases, the court “impose any sentence upon the juvenile that could be imposed upon an adult convicted of the offense for which the juvenile was convicted.”  This includes life imprisonment.  Because these cases would directly impact Michigan Law, I thought it was good subject matter for this web site.

What rule do you think the U.S. Supreme Court should use in these cases – a bright line test one way or another or give judges discretion to sentence to life in prison based on the age of the child and other factors?