Posted on July 1st, 2010 No comments
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).
Posted on June 24th, 2010 No comments
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day after I get around to posting In re Mason, the Court of Appeals issues its first reversal based it: In re Lopez (unpublished).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.
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
Posted on June 23rd, 2010 No comments
Interesting things happen when you are on vacation. While I was on our family vacation, the Michigan Supreme Court ruled on In re Mason.
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:
- 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.
- 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.
- 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)
- 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)