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.

After taking jurisdiction, the trial court placed the children with father.  Mother moved for immediate return of the minor children, arguing that the trial court erred in failing to consider the established custodial environment of the children or the best interest factors under the Child Custody Act (CCA).  The motion was denied by the trial court.

On appeal, mother argued that the court should have treated the matter like a change of custody under the CCA.  The Court of Appeals engaged in a discussion of its recent opinion In re AP & BJ regarding the interplay between child custody matters and child protection proceedings.  The CoA held that while the trial court continues to exercise jurisdiction over the children through the juvenile proceedings it is charged with a duty to take measures with respect to children and adults properly within its jurisdiction, including placing the children in the home of a related adult.  If at the time the juvenile court dismisses its jurisdiction over the child it concurrently orders a change of custody, the juvenile court must abide by the procedural and substantive requirements of the CCA, including a more formal determination of the child’s best interests.

My two cents: This was a pretty straight forward decision.  While a child is within the jurisdiction of the Court as a result of a child protection proceeding or juvenile delinquency, the ordinary custodial orders are suspended and the court is vested with those powers ordinarily left to the custodial parent(s), including the authority to place the child.  The public policy behind this is sound because in an ordinary custody case, maintaining the child’s established custodial environment is favored.  When there jurisdiction under delinquency or a child protection proceeding, there has been some failure of the established custodial environment to protect the child or the public and the state must intervene.  Thus, the status quo is not favored and the approach under the CCA does not apply.

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

© 2009, Melinda Deel. All rights reserved.