In re Ignelzi – Due Process

The Court of Appeals issued another opinion reversing a termination of parental rights this week.   The case involves the trial court’s termination of an incarcerated Father’s parental rights.

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

In Re Mitchell – Housing and other issues

First, a little procedural history: In an unpublished decision on March 24, 2009, the Court of Appeals affirmed the termination of father’s parental rights in a 2-1 opinion with Judges Jansen and Borrello in the majority and Judge Stephens dissenting.  The matter was presented to the Supreme Court on leave to appeal.  In an order dated October 23, 2009, the Supreme Court reversed the Court of Appeals in lieu of granting leave to appeal.

Here are the facts: The children initially came into care because of Father’s drinking problem, the fact that he allowed a known sex offender to reside in the home with the family, the dirty and unkempt nature of the home and his neglect of the children.

At the time of the termination, Father had remained sober for over a year, the sex offender no longer resided with the family and he had exercised supervised parenting time.  Father had moved in with his sister and brother-in-law, who lived more than 30 miles from where he worked. The move was the result of Father’ s financial difficulties and his inability to make the mortgage payments.   Father had complied with all of the requirements and services offered, with the exception of having his own home for the children.

Judges Jansen and Borrello ruled that the facts justified a statutory basis for termination under MCL 712A.19b(3)(c)(i), in that Father’s housing continued to be inadequate. They also held that termination was proper under MCL 712.19b(3)(g), in as much as he had failed to provide proper care and custody and he was unlikely to do so within a reasonable time.

In a very well-written dissent, Judge Stephens wrote the following:

. . . the court improperly focused on the fact that respondent failed to meet the mortgage obligations on his former home. That home was originally purchased with the children’s mother, from whom respondent was later estranged.  The decision to purchase the home was based upon the belief that both parents would make economic contributions. Therefore, when the couple separated, the home was the subject of an orderly short sale. This is woefully common in Michigan in 2009. By partially basing its decision on this consideration, the court improperly concluded that this unfortunate, though common, occurrence is an indication that an individual is an unfit parent.

Similarly, the court was also critical of respondent’s choice to work at Wal-Mart rather than seek employment as a chemical engineer. While one may speculate as to whether there are employment opportunities for inexperienced chemical engineers, the sole focus of the court should be whether respondent has any legal source of income, whether that income is adequate to care for the children and whether it will likely be used for that purpose. The fact that respondent could have potentially earned a greater income does not automatically indicate that his income was inadequate.

Judge Stephens also addressed the trial court’s criticism of his choice to live with his sister and brother-in-law.  Father testified that he relied on his family, church and sobriety groups to maintain his sobriety.  Judge Stephens noted the fact that Father’s choice to move in with relatives brought him closer to that support system and there was no evidence that the home was not safe, clean or spacious enough for the children.  Father had even crafted a detailed plan for the children at that home.  Judge Stephens cites the U.S. Supreme Court case Moore v East Cleveland, 431 US 494, 505; 97 S Ct 1932; 52 L ED 2d 531 (1977):

“Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home . . . Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life.”

On application for leave to appeal, the Supreme Court reversed the opinion of Judges Jansen and Borrello and adopted the reasons stated in Judge Stephens’ dissenting opinion.

This opinion reflects a sign of the times here in Michigan.  With the home foreclosure rate and short sales sky high in Michigan, Father in this case found himself in an all too familiar circumstance.  Certainly, we cannot terminate the rights of every parent that loses their home to foreclosure or short sale.  As Judge Stephens points out, the proper inquiry is whether the children are properly cared for and whether the home is an adequate environment for the children.

Sometimes it becomes difficult for judges and those of us who find ourselves in occupations that are somewhat insulated from ordinary market forces to fully understand the economic hardships being experienced by many in Michigan.  We cannot become insensitive to the cultural or other circumstances that lead people to live situations other than the traditional nuclear family where the household consists of mom, dad, the kids and the family pet.  I think the dissent in this case does an excellent job making this point.  Frankly, Judge Stephens did a better job than I could have on the issue.

You can download the majority opinion here: In re Mitchell (majority)

You can download the dissent here: In Re Mitchell (dissent)

You can download the Supreme Court’s Order here: In re Mitchell (Supreme Court)

In re Eastman – Insufficient Evidence for Termination

In this unpublished opinion from Ingham County, the supplemental petition alleged CPS received a complaint respondent was selling drugs and had guns in his house.  Four days later, the foster care worker referred him for a drug screen, which he failed to complete.  DHS attempted to follow up with him without success.  The trial court terminated Father’s parental rights pursuant to 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.]

The CoA reversed, holding that the evidence established there was a cause for concern regarding his ability to provide proper care and custody, but the CPS complaint was not substantiated.   The evidence did not clearly and convincingly show respondent was unable to provide proper care and custody or he would not be able to do so within a reasonable time.   The evidence at the hearing established the CPS complaint was unfounded and subsequent drug screens indicated respondent was not using drugs.   Because there was no reason to believe he abused drugs or kept guns in his home, there was no basis for concluding he was unable to provide proper care and custody or he would not be able to provide proper care and custody within a reasonable time given the child’s age.

This case is significant because it deals with the sufficiency of evidence necessary to substantiate the allegations contained in the petition under the clear and convincing evidence standard.  In this case, because Father failed to follow up on drug testing, there was no  evidence to support the allegation that he was using or selling drugs.   I have often argued that the burden to show a statutory basis to terminate parental rights is on the state – the parent is not required to prove anything.   However, it does not always feel that way or (as evidenced in this case) work that way in practice.  Often, when allegations are made by DHS the respondent must disprove them at trial in order to prevail.   Even in this case, the CoA went out of its way to make clear that “subsequent drug screens indicated that respondent was not using drugs.”  Would the Court have ruled the same way had father refused drug testing throughout the adjudicative process?  I suspect not.  Nevertheless, before the state may sever the Constitutionally protected rights of a parent to his or her child, it must clearly and convincingly make its case and the parent is not required to assist the state in its prosecution.

You can view or download the file here: In re Eastman