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 July 28th, 2009 1 comment
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