On February 14, 2008, the trial court took jurisdiction based on the mother’s plea to certain allegations in the petition.  The father remained incarcerated and no arrangements were made for his participation in the hearing.  Respondent’s counsel indicated his client knew of the hearing and was going to be incarcerated for the near to long-term future.  The CPS worker indicated he would develop a case service plan for the mother.  However, no one mentioned a plan for the father.  In addition, the respondent’s counsel did not even propose that respondent participate in future hearings by telephone.

At the next two statutory review hearings, no arrangements were made for the father to participate by phone.  The DHS worker indicated that no service plan was developed for the father “because he’s still incarcerated at this time.”

At the third review hearing, the court informed the respondent (who participated by phone) that “you understand . . . that we are not able to include you in any sort of plan, service plan, at this time because you are still incarcerated[,]”.  The father indicated that his outdate was October 3, 2009.  Yet at the September 2008 hearing (when the father again participated by phone) virtually no mention was made of him.  During the temporary jurisdiction phase, the father did not participate at the adjudication, disposition and the first three review hearings.

In November 2008, DHS filed a supplemental petition. At this time, Mother voluntarily relinquished her parental rights.

The trial court found that both MCL 712A.19(b)(3)(c)(i) and MCL 712A.19(b)(3)(h) had been proven and that it was in the child’s best interests to terminate his father’s rights.  First, the Court of Appeals indicated that because the prosecutor, court and respondent’s counsel failed to adhere to the procedures in MCR 2.004(B) and (C), Respondent was deprived of the opportunity to participate in all proceedings conducted from November 2007 to July 2008.  This, the Court of Appeals concluded, required a reversal of the order terminating the father’s parental rights.

Second, the Court held that DHS deliberately withheld service from the respondent with the approval of the trial court.  They focused on the mother and, in doing so, disregarded the father’s statutory rights.  Thus, like In re Mason, ___ Mich ___ (Docket #139795; decided 5/26/2010), the Court reversed and remanded the matter for DHS to provide services which they previously neglected to supply the father.

Finally, the Court indicated that the trial court proceeded to consider termination of the father’s rights based on different circumstances than those admitted by the mother, those proofs should have been established by legally admissible evidence.  The evidence introduced consisted largely of inadmissible hearsay including evidence that focused on an allegation the father had sexually abused his niece.  The father was never charged with this alleged act and he vehemently denied it.

You can view or download the case here: In re D.M. Kleyla

© 2010, Melinda Deel. All rights reserved.

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).

© 2010, Melinda Deel. All rights reserved.

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

© 2010, Melinda Deel. All rights reserved.

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)

© 2010, Melinda Deel. All rights reserved.

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.

The case involves the termination of Respondent father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j).  The Court of Appeals opinion was issued September 15, 2009.   The opinion is only three paragraphs long and affirms the termination of Respondent Father’s parental rights pursuant to MCL 712A.19b(3)(g), (h), and (j).  It held termination under MCL 712A.19b(3)(c)(i) was harmless error – probably because the three other statutory grounds for termination were affirmed.

The opinion indicates that Respondent Father was jail when the children first came into care, but was later sentenced to 3 to 10 years in prison.  The CoA affirmed the trial court’s finding that while his earliest release date was July 2009, there was no evidence that he was likely to be paroled at that time and even if he were, he would require at least six months to demonstrate a stable lifestyle.  The CoA also rejected his argument that the trial court erred in failing to hold a separate best interest hearing, holding that on a supplemental petition, the court need only hold a single hearing at which both statutory grounds for termination and best interests are considered. The CoA cited  MCR 3.977(G)(1)(b) and (3) is support of its ruling on this issue.

The Michigan Supreme Court’s Order granted oral argument on three issues and framed them as follows: whether the trial court clearly erred in terminating the respondent-father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j),

• where the Department of Human Services failed to maintain contact with the respondent-father throughout the proceedings,
• failed to ensure his appearance at all court hearings (see MCR 2.004), and;
• failed to provide him with an opportunity to comply with a parent-agency agreement tailored to his circumstances, citing In re Rood.

There is no mention of the issue regarding the failure to hold a separate best interests hearing.  The  case originated in Macomb County.  John Bologna is the attorney for Respondent Father.  He handles a number of appeals from Macomb County and does a fair amount of work in Oakland.  I will ask him about the case if I see him in the courthouse and keep you posted.

You can view or download the CoA Opinion here:  In re Mason (CoA)

You can view or download the MSC order here:  In re Mason (MSC Order)

© 2009, Melinda Deel. All rights reserved.

During the course of an investigation related to allegations that the child had been sexually abused by a family friend, DHS learned that Father had been convicted of 3rd and 4th degree CSC and sentenced to 6 to 15 years in prison in March 2007.   The victim was a 14 year old student at the school where Father worked as a janitor and the offenses occurred at the school.  DHS considered Father an unfit parent based solely on his CSC offenses.

DHS filed a petition to terminate Father’s parental rights under MCL 712A.19b(3)(g), (h), and (j).  The trial court found that “based on the information provided that father will not be around for a significant priod of this child’s life and that satisfies MCL 712.2(b)(1) and (2).  The Court went on to find a statutory basis for termination of parental rights under MCL 712A.19b(3)(g), (h), and (j).  Later, the trial court found termination was in the child’s best interests.

In its analysis, the Court of appeals addressed whether the trial court properly found jurisdiction.  The Court looked at four basis upon which a court may acquire jurisdiction under MCL 712A.2.

1) The first basis for jurisdiction under § 2(b)(1) is that the parent “legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals.” In this case, the Court found Father was unable to provide for the child due to his incarceration.

2) The second basis for jurisdiction under § 2(b)(1) is that the child “is subject to a substantial risk of harm to his or her mental well-being.” Where the child is the victim of a criminal offense committed by the parent, the court can exercise jurisdiction under the second clause of § 2(b)(1) because “there most certainly will be some negative effect on the child’s mental well-being” and the fact that the parent is incarcerated at the time the petition is filed “does not eliminate the mental and emotional effect on the child of his violent conduct.” In re S R, 229 Mich App 310, 315; 581 NW2d 291 (1998).  In this case, since the CSC was committed on an unrelated minor and the child had no knowledge of the crime, there was no risk of harm to the child.

3) The third basis for jurisdiction under § 2(b)(1) is that the child has been abandoned by her parents. To abandon something is “to leave completely and finally; forsake utterly; desert.” Random House Webster’s College Dictionary (1992). In the context of the parent-child relationship, abandonment is most often described as willful or intentional conduct on the part of the parent which manifests a settled purpose to forgo all parental duties and relinquish all parental claims to the child. In re TCB, 166 NC App 482, 485; 602 SE2d 17 (2004). Accord Petition of CEH, 391 A2d 1370, 1373 (DC, 1978); Hinkle v Lindsey, 424 So 2d 983, 985 (Fla App, 1983); In re Adoption of DA, 222 Ill App 3d 73, 78; 583 NE2d 612 (1991); In re Adoption of MLL, 810 NE2d 1088, 1092 (Ind App, 2004); In re Guardianship of DMH, 161 NJ 365, 376-377; 736 A2d 1261 (1999).  In this case, father communicated with the child from prison, so this ground was improper.

4)  The fourth basis for jurisdiction under § 2(b)(1) is that the child is without proper custody or guardianship.  If the child is living with another legally responsible adult who is providing proper care, the child is not without proper custody or guardianship despite the fact that the parent himself is unable to provide proper custody. MCL 712A.2(b)(1)(B); In re Nelson, 190 Mich App 237, 241; 475 NW2d 448 (1991).  In this case, the child was living with mother and there was no evidence she was not providing proper care.

5) Jurisdiction may also be acquired under § 2(b)(2). This subsection requires proof that due to some danger posed by a parent, the child’s home or environment is an unfit place for the child to live. However, a parent’s criminal status alone is not sufficient to enable the court to exercise jurisdiction under § 2(b)(2). In the Matter of Curry, 113 Mich App 821, 830; 318 NW2d 567 (1982). It must also be shown that the child’s custodial environment was unfit. Id.

Finding that there was no applicable basis for jurisdiction, the Court reversed the termination.  The Court did not address whether any of the statutory bases for termination were proper.  I do not believe the case was remanded because the finding was that the Court lacked jurisdiction.

This is a nice post to review whenever you are thinking about challenging jurisdiction because the opinion is comprehensive in its analysis of each of the grounds upon which a court may acquire jurisdiction over a child under MCL 712A.2.  The case also provides some nice citations to certain defenses to jurisdiction you may want to use.

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

© 2009, Melinda Deel. All rights reserved.