In re Mason: Mi Supreme Court takes up termination case

If you haven’t been able to tell from the activity on this site over the past year, 2009 has been a banner year in the area  of child protection law.  From the looks of things, this trend will continue into 2010.  Yesterday, the Michigan Supreme Court agreed to take up a termination of parental rights case, In re Mason.

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)

In re Mason – Separate Best Interest Hearing Not Required on Supplemental Petition

In this case, the Court of Appeals affirmed a termination of respondent father’s parental rights on a supplemental petition.  He argued that the trial court erred by not holding a separate best interests hearing after finding a statutory basis to terminate his parental rights.  The CoA held the argument was without merit because where termination is requested pursuant to a supplemental petition filed after the initial dispositional hearing, the trial court need only conduct a single hearing at which both the statutory ground for termination and the child’s best interests were considered. Defendant was not entitled to a separate best interests hearing.  The CoA cites MCR 3.977(G)(1)(b) and (3) in support of its finding, which state:

(G) Termination of Parental Rights; Other. If the parental rights of a respondent over the child were not terminated pursuant to subrule (E) at the initial dispositional hearing or pursuant to subrule (F) at a hearing on a supplemental petition on the basis of different circumstances, and the child is within the jurisdiction of the court, the court must, if the child is in foster care, or may, if the child is not in foster care, following a dispositional review hearing under MCR 3.975, a progress review under MCR 3.974, or a permanency planning hearing under MCR 3.976, take action on a supplemental petition that seeks to terminate the parental rights of a respondent over the child on the basis of one or more grounds listed in MCL 712A.19b(3).

(1) Time.

…

(b) Hearing on Petition. The hearing on a supplemental petition for termination of parental rights under this subrule must be held within 42 days after the filing of the supplemental petition. The court may, for good cause shown, extend the period for an additional 21 days.

(3) Order. The court must order termination of the parental rights of a respondent and must order that additional efforts for reunification of the child with the respondent must not be made, if the court finds

(a) on the basis of clear and convincing evidence admitted pursuant to subrule (G)(2) that one or more facts alleged in the petition:

(i) are true, and
(ii) come within MCL 712A.19b(3).

(b) that termination of parental rights is in the child’s best interests.

I believe the CoA based its opinion on the singular use of the word “hearing” in MCR 3.977(G)(1)(b).  However, I don’t read the rule as a basis to deny a separate best interest hearing on a supplemental petition.  To the contrary, the fact that the statutory basis findings and the best interest findings are set forth in separate sub-paragraphs indicate that a separate hearing is required.

Also, take a closer look at MCR 3.977 (G)(3)(a) and (b).  You will notice that the clear and convincing standard is used for finding a statutory basis for termination in sub-paragraph (a), but  there is no standard listed for the best interest findings in sub-paragraph (b).   The way this rule is drafted leaves some ambiguity as to the standard of proof necessary to show that it is in the best interests of the child to terminate parental rights.

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