In re Hansen – Supreme Court Vacates Court of Appeals

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).

In re Lopez (unpublished)

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day after I get around to posting In re Mason, the Court of Appeals issues its first reversal based it: In re Lopez (unpublished).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.

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

In Re Sikorski – Release from Prison

In this case, the CoA found that the trial court clearly erred when it terminated rights under 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.] Respondent’s earliest release date from prison was only two months after the termination hearing.  The Court reasoned that there is too much uncertainty in potential release dates for section (3)(h) to be used as a basis to terminate parental rights when a respondent’s earliest release date is close to the time of the termination hearing.

The Court went on to hold that the error was harmless because there were other grounds for termination that respondent did not contest. If  your client’s earliest release date is anytime within two years of the termination hearing, you could make this argument.  Obviously, the closer to two years from the termination hearing your client’s earliest release date is, the less likely this argument will prevail.

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

In re Hansen – Published Opinion Re: Best Interests

Last week, the Court of Appeals (CoA) issued a published opinion in a child protection matter.  The case is the first to address the best interest scheme after MCL 712A.19b(5) was amended on July 11, 2008.

The facts of the case are pretty simple.  Respondent Father was incarcerated at the time the child came into care.   At the time the supplemental petition for termination of parental rights was filed, he still had 12 years remaining on his minimum sentence.  The trial court terminated parental rights under MCL 712A.19b(3)(c)(i) because the conditions leading to the adjudication continued to exist and there was no reasonable likelihood they would be rectified within a reasonable time and under MCL 712A.19b(3)(h) because the child will be deprived of a normal home with him for a period far exceeding 2 years, where his earliest release date is not until 2021, when she will be at least 13 years old.

The CoA did not find that the trial court erred with respect to the statutory basis.  However, the CoA found the trial court erred in not making an affirmative best interest finding.   Before MCL 712A.19b(5) was amended, a trial court was not required to make specific findings on the question of best interests under In re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005).

With the amendment to MCL 712A.19b(5), it appears Gazella is no longer good law.   As amended, termination of parental rights may only occur if the court finds a statutory ground for termination and that the termination of parental rights is in the child’s best interest.  If the court so finds, termination is mandatory and not permissive (“the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.” MCL 712A.19b(5)).  Thus, the trial court must make specific best interests findings following a finding that a statutory basis for termination of parental rights exists.  The CoA found that while the trial court erred in appying the wrong best interests tests, the error was harmless because ample evidence existed on the record to support a finding that termination of parental rights was in the best interests of the child.

There is nothing too groundbreaking about this case, but it is the first to interpret the amended MCL 712A.19b(5).  It is a fairly straightforward interpretation of the statute.  I assume In re Trejo is also no longer good law.  Now, if only the appeals courts would give us a definition for best interests.  But I dream.

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

Link to case on Google Scholar.