In this case, the child (XNI) was initially brought within the trial court’s jurisdiction based on allegations of mother’s neglect (there were no allegations regarding father).   The petition, filed in November 2007, identified a putative father and noted his address in an Indiana state prison.

In December 2007, DNA testing established father’s paternity.  In September 2008, counsel was appointed for Father for a permanency planning hearing.  Father was not given an opportunity to appear at the hearing by phone.  Father’s counsel did not object to his client’s lack of an opportunity to participate.   A foster care worker testified to a letter received by father indicating that his earliest release date was April 2010.

In October 2008, DHS filed a supplemental petition seeking to terminate father’s parental rights.  The petition did not allege any factual allegations against Father, other than the standard statutory language under MCL 712A.19b(3)(g) & (j).  Father was not provided an opportunity to participate in the termination hearing and no objections were raised by any party (including his own attorney) to his absence.   At the trial, the foster care worker testified to letters written by Father that his earliest release date was in April 2010 “or sooner with educational or substance abuse time-cuts.”

On appeal, Father argued that he was denied procedural and substantive due process by  the circuit court’s neglect to secure his presence at the termination hearing or his participation by phone.  The Court of Appeals initially noted that MCR 2.004(A)(2), which provides for telephonic access in termination of parental rights proceedings if the parties are incarcerated under the jurisdiction of the Department of Corrections does not apply where the respondent is incarcerated out-of-state.  The Court of Appeals based its analysis on whether Father’s due process rights were violated by failing to involve him in the proceedings.

The Court analyzed the case under the three factors for determining due process contained in Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976) and reiterated by the Michigan Supreme Court in Justice Corrigan’s opinion in In re Rood, 483 Mich 73; 763 NW2d 587 (2009), which are as follows:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

The Court found that MCR 2.004 represents the Michigan Supreme Court’s recognition that “basic due process principles mandate affording incarcerated parents a meaningful opportunity to be heard before the state terminates their parental rights.”  The Court also concluded that the failure to secure participation by Father was not harmless error in this case because evidence could not be established that he could not be released with good behavior and able to parent prior to his April 2010 release date without his participation.  In addition, the trial court failed to terminate Mother’s parental rights despite finding that “left unsupervised, [Mother] is a danger to her children.”

The Court of Appeals summarized its findings as follows:

In summary, the circuit court’s neglect to give respondent any meaningful opportunity to be heard during these proceedings, combined with petitioner’s failure to perform even the most rudimentary investigation about respondent’s background and capabilities, foreclosed the possibility of a decision predicated on clear and convincing evidence.

The court reversed and remanded the case to the trial court to provide services to Father.

While this case is unpublished, the argument should serve as a model for attorneys representing incarcerated parents in termination cases because the reasoning is so strong.  The case does raise a question regarding what a court is to do if the out-of-state prison refuses to allow the parent to participate?  After all, the court lacks jurisdiction to compel out-of-state prisons to do anything.  The question was not raised in this case because the court did not try to secure Father’s participation, but what if it had and was denied by the prison?  Would the Court of Appeals have held that the attempt to secure his participation was enough?   I would hate to think  it would have left the child in limbo until it could secure Father’s participation.

We also should not forget that Father’s case was buttressed by the fact that the parental rights of Mother, who had custody of the children, were not terminated.  This meant the child would remain under the supervision of the court, reducing the harm in giving Father an opportunity to plan for the child.  Father’s defense was also aided by the fact that DHS did not to their homework regarding,

“(1) the nature of respondent’s relationship with XNI before his incarceration; (2) the length of time that respondent had been incarcerated; (3) the date of respondent’s potential release; (4) whether respondent had attempted to plan for XNI or desired to share involvement in that process; (5) whether respondent had obtained any services in prison; or (6) whether respondent’s family members were interested in caring for XNI, MCL 722.954a(2); 42 USC 671(a)(29).”

This made it impossible for DHS to meet its burden under MCL 712A.19b(3)(g) & (3)(j).

In closing, I should also point out that the Court specifically called out the appellate attorney for not ordering the transcripts of the hearings prior to the September permanency planning hearing after Father was made legal and appointed counsel.  The Court wants to see those transcripts to have a better understanding of the case.  The Court was sending a strong message to all of us appellate attorneys.

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

© 2010, Melinda Deel. All rights reserved.