In re Thomas

Well, well, well.  It appears I have caused a little bit of a stir among those who regularly practice in the area of child protection law.

On December 18, 2009, the Trial Court terminated mother’s parental rights to her one year old daughter. Her parental rights to five other children were previously terminated in 2004, and her parental rights to a sixth child were terminated in 2006. This most recent termination was her seventh.  Mother had made great strides since the most recent termination. I was appointed to represent Mother on appeal.

On December 7, 2010, the Court of Appeals issued an opinion reversing the trial court.  The Court wrote:

“Reviewing the evidence as a whole, we harbor serious doubts that the statutory grounds for termination were established by clear and convincing evidence as to (b)(ii), (g), and (j). A trial court may terminate parental rights pursuant to MCL 712A.19b(3)(i) where:

Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and prior attempts to rehabilitate the parents have been unsuccessful.

Assuming, without deciding, that the above statutory basis was clearly and convincingly established, we nevertheless reverse because clear and convincing evidence did not establish that termination was in the child’s best interests.

What has most concerned about this opinion is the Court of Appeal’s application of the clear and convincing evidence standard to the best interest determination.  Both MCR 3.977 and MCL 712A.19b(5) are silent as to the burden of proof to be applied at best interests.  This case is significant because the Court of Appeals has interpreted the statute and the Court Rule to apply the clear and convincing evidence standard as opposed to preponderance of the evidence.  For those you that follow this blog, you know I have commented that there is some ambiguity in the statute and court rule as to the applicable burden of proof (see here).

What I think is the most important thing to take away from this case is that mother had made great strides to correct the conditions that led to the previous termination.  The Court noted “[mother] is [not] the same person that she was when her rights were terminated to the other children some years prior, and none of the prosecution’s witnesses testified that respondent’s parental rights should be terminated or that termination would be in the child’s best interests.”  Regardless of the burden of proof, Mother was in a position to be given a chance to reunify with her children.

Because I am the attorney on the case, I hesitate to comment too much on the matter until it reaches an ultimate resolution.  I promise to post more regarding the burden of proof at best interests in the future.

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

In re Mason – Separate Best Interest Hearing Not Required on Supplemental Petition

In this case, the Court of Appeals affirmed a termination of respondent father’s parental rights on a supplemental petition.  He argued that the trial court erred by not holding a separate best interests hearing after finding a statutory basis to terminate his parental rights.  The CoA held the argument was without merit because where termination is requested pursuant to a supplemental petition filed after the initial dispositional hearing, the trial court need only conduct a single hearing at which both the statutory ground for termination and the child’s best interests were considered. Defendant was not entitled to a separate best interests hearing.  The CoA cites MCR 3.977(G)(1)(b) and (3) in support of its finding, which state:

(G) Termination of Parental Rights; Other. If the parental rights of a respondent over the child were not terminated pursuant to subrule (E) at the initial dispositional hearing or pursuant to subrule (F) at a hearing on a supplemental petition on the basis of different circumstances, and the child is within the jurisdiction of the court, the court must, if the child is in foster care, or may, if the child is not in foster care, following a dispositional review hearing under MCR 3.975, a progress review under MCR 3.974, or a permanency planning hearing under MCR 3.976, take action on a supplemental petition that seeks to terminate the parental rights of a respondent over the child on the basis of one or more grounds listed in MCL 712A.19b(3).

(1) Time.

…

(b) Hearing on Petition. The hearing on a supplemental petition for termination of parental rights under this subrule must be held within 42 days after the filing of the supplemental petition. The court may, for good cause shown, extend the period for an additional 21 days.

(3) Order. The court must order termination of the parental rights of a respondent and must order that additional efforts for reunification of the child with the respondent must not be made, if the court finds

(a) on the basis of clear and convincing evidence admitted pursuant to subrule (G)(2) that one or more facts alleged in the petition:

(i) are true, and
(ii) come within MCL 712A.19b(3).

(b) that termination of parental rights is in the child’s best interests.

I believe the CoA based its opinion on the singular use of the word “hearing” in MCR 3.977(G)(1)(b).  However, I don’t read the rule as a basis to deny a separate best interest hearing on a supplemental petition.  To the contrary, the fact that the statutory basis findings and the best interest findings are set forth in separate sub-paragraphs indicate that a separate hearing is required.

Also, take a closer look at MCR 3.977 (G)(3)(a) and (b).  You will notice that the clear and convincing standard is used for finding a statutory basis for termination in sub-paragraph (a), but  there is no standard listed for the best interest findings in sub-paragraph (b).   The way this rule is drafted leaves some ambiguity as to the standard of proof necessary to show that it is in the best interests of the child to terminate parental rights.

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