COA Directs Trial Court to Mind Its "l's" and "m's"--PUBLISHED OPINION

In a published decision, the Court of Appeals found that the Kent County Circuit Court erred in terminating a mother's parental rights under MCL 712A.19b(3)(l), where the mother had voluntarily released her rights to a different child under the Adoption Code. In In re MAJJ, minor, the Court held that MCL 712A.19b(3)(l) only permitted mandatory termination of parental rights where the prior termination was entered under the Juvenile Code, not the Adoption Code.

The Court of Appeals affirmed the Trial Court, despite its citation to the wrong statute by finding alternatively that MCL 712A.19b(3)(m) clearly applied to the facts of the case permitting termination of respondent's parental rights. Specifically, subsection (m) applies because the voluntary release of parental rights under the Adoption Code happened after proceedings were initiated pursuant to the Juvenile Code.

Interestingly, this is another case recognizing a repeated pattern where the Court of Appeals expressly states that an appellate attorney did not brief the issue which essentially resulted in the resolution of the case on appeal. Most people are told to mind their "P's" and "Q's," however, in tpr appeals involving voluntary releases followed by subsequent terminations, perhaps we should mind our "l's" and "m's."

Appellate Courts to Review Constitutionality of SORA as Applied to Juveniles?? Only Time Will Tell....

In a September 30, 2009 opinion, Washtenaw County Family Court Judge, Hon. Darlene O'Brien, called into question the constitutionality of SORA's application in juvenile cases. Specifically, O'Brien reasoned the mandatory reporting requirement as applied to juveniles does not serve a legitimate purpose given the most current evidence indicating a low recidivism rate for juvenile sex offenders in light of the overall purpose of juvenile law: rehabilitation not punishment.

Although the Court of Appeals has upheld the constitutionality of SORA's registration requirement as applied to juveniles, it did so in In re Ayers, decided in1999. At that time, juveniles were exempt from public registration. Since Ayers, juveniles are no longer exempt from public reporting. Also, in In re Wentworth, the COA questioned, "[T]he propriety of publicly and permanently labeling juveniles as convicted sex offenders" noting that, "public notification provisions of SORA appear to conflict with out traditional reluctance to criminalize juvenile offenses and our commitment to keep juvenile records confidential."

Judge O'Brien highlighted that the recidivism rates cited by the COA in Ayers are no longer accurate in light of recent published research. Without current data supporting high recidivism rates, or the protections afforded by non-public registration, Judge O'Brien concluded that mandatory reporting for a juvenile convicted of CSC II was unconstitutional.

As of this post, the prosecution has not filed an appeal. However, this issue has been a hot topic for Michigan practitioners since the opinion came out. If I asked my appellate Magic 8 Ball whether an appeal is likely, it would say, "All signs point to YES!"

COA Gives Stamp of Approval to Trial Court in Published WDCA Case

In Fries v Mavrick Metal Stamping, Inc, et al, the Michigan Court of Appeals affirmed the trial court's decision denying defendants' motion for summary disposition under MCR 2.116(C)(10) in a published opinion. In Fries, the plaintiff was injured at work when her lose clothing triggered operation of a stamping machine while her hands were underneath the moving parts. She presented deposition testimony to the trial court illustrating that both a manager and supervisor at Mavrick had been advised that loose clothing actually did trigger operation of the machine on a prior occasion. Although the machine operator was not injured on the previous occasion, his deposition testimony revealed that the incident caused him to button his clothing behind his back any time he operated that particular stamping machine.

Despite defendants' argument that plaintiff's claim did not fall within the intentional tort exception to the WDCA, the Court of Appeals, in an opinion authored by Judge Gleicher, agreed with the trial court that the pleadings created a genuine issue of material fact as to whether the tort exception applied.

The COA cited the Michigan Supreme Court's decision in Golec v Metal Exch Corp, to dispel defendants' claim that testimony illustrating that management had been advised that the machine that injured plaintiff had been triggered by loose clothing on a prior occasion did not create a fact issue regarding actual knowledge. Defendants' argument was premised on the fact that nobody was injured on the prior occasion and therefore, plaintiff could not establish that there was any disregard of an injury that was certain to occur.

In Golec, the Supreme Court explained that where the facts alleged by a plaintiff, if established at trial, establish a continually operative dangerous condition known to defendant, then a genuine issue of material fact is presented regarding whether the injury was certain to occur. In this case both the trial court and COA concluded that the evidence presented, if proven at trial, established that the potential of loose clothing triggering operation of heavy machinery was a continually operative dangerous condition which management knew of, consequently there was a genuine issue of material fact as to whether injury was certain to occur.

Court's decision may tie hands of appellate practitioners

The Court of Appeals issued a published opinion in Barnard Manufacturing v Gates Performance Engineering, which could cause problems for many appellate attorneys appealing trial court orders on summary disposition. In Barnard,although the Court of Appeals recognized that the defendant's evidentiary support "could have been better organized and presented," the Court of Appeals would not consider evidence attached to the motion and response that created a fact issue for plaintiff's case because plaintiff had failed to call attention to evidence in its response.

The Court interpreted MCR 2.116(G)(5) -- which states that "The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1) - (7) or (10) -- to mean that the trial court did not have to consider all of those pieces of evidence unless they were specifically addressed in the response to the summary disposition motion.

The practical effect of this opinion is that an appellate attorney, possibly facing imperfect trial court briefing but good evidence attached to the motion or response, will be unable to make the case on appeal that there is a genuine issue of material fact.

Supreme Court to review the hotly debated Kreiner decision

In a long-awaited ruling among no-fault automobile practitioners, the Supreme Court granted leave in McCormick v Carrier (Docket No 136738), which challenges the Kreiner court's interpretation of the No-Fault Act's threshold for serious impairment of a body function. The internal dispute on the Supreme Court continues as to the propriety of the Supreme Court reconsidering decisions it had made while Chief Justice Taylor was still on the bench, with a dissent by Justice Corrigan and a response by Justice Weaver. The next year should be very interesting indeed!

COA Says TPR Not the Solution to Every Unsolved Mystery

In In re ALNW, Minor, the Court of Appeals reversed an order terminating parental rights to both parents of the minor child. When the child's mother, then 20 years-old, noticed a popping sound in the four month old's chest, she immediately called her doctor seeking advice. Since the child was not experiencing other symptoms, the doctor advised the mother to wait until the child's next check-up to have the child looked at. After x-rays revealed that the child had suffered several broken ribs, DHS became involved.

Although both of the child's parents sought immediate medical attention and seemed genuinely concerned about the child, they were unable to explain how the child's injuries occurred. Given the severity of the child's injuries and lack of a reasonable explanation, DHS filed a petition seeking immediate termination of both parent's rights to the child. They were not offered services simply because they failed to explain how their infant child was injured.

At trial, the child's guardian ad litem opined that the parents, who were young and inexperienced, could be good parents if offered the opportunity to participate in parenting classes. He highlighted the lack of evidence of any neglect, abuse, or even negligent actions on the part of either parent and advocated that termination was not in the child's best interest. Despite the guardian ad litem's recommendation against termination, the trial court found that there was clear and convincing evidence satisfying several statutory grounds for termination and that termination of both parent's rights was in the child's best interest.

The Court of Appeals disagreed, reasoning that the mere fact that the child was injured without explanation, absent any other evidence of abuse or neglect is insufficient to satisfy any of the statutory grounds for termination of parental rights cited by the trial court.

The Court further explained that the trial court had more options than just termination and returning the child to the parent's unsupervised care. The COA opinion was amply supported by The Michigan Supreme Court's recent opinion on the issue in In re Rood where the Court held, "It is only when timely and intensive services are provided to families that agencies and courts can make informed decisions about parents' ability to protect and care for their children." The COA urged that the trial court could have asserted temporary jurisdiction, offering the parents a service plan and opportunity to improve their parenting.

Fortunately, the COA recognized the importance of a parent's fundamental liberty interest in raising children and re-emphasized the role of the probate courts in working to reunify families. Instead of allowing the trial court to apply something similar to the tort doctrine of res ipsa loquitor to a termination of parental rights case, the COA properly directed the trial court to provide the parents with an opportunity to improve their parenting skills. The facts and procedure in this case are indicative of a trend that is all too common--immediate termination simply because DHS does not like the parent's explanation with regard to some basis for jurisdiction. However, the appellate courts are consistently identifying those instances where the trial courts rubber stamp the DHS recommendation on a less than convincing record.

Sadly, by the time these cases reach the appellate courts, many of these families have been separated for a lengthy period of time--something that can never be repaired by an appellate decision. Clearly child welfare law does not mandate that parents must provide explanations in order to earn services. To the contrary, Michigan law favors reunification whenever possible.

Equitable Parenthood: Not an Ageless Doctrine

In Vanderark v Vanderark, the Court of Appeals concluded the the trial court erroneously held that the plaintiff was the equitable parent of a minor child born to plaintiff's wife during the marriage. Plaintiff and Defendant married in 2002, but defendant began an affair in 2007. During the course of the affair, defendant conceived a child with her lover and the record showed that she never told plaintiff (her husband) that he was the child's father or that there was any uncertainty regarding the child's paternity.

Defendant moved out of the marital home three months prior to giving birth. Although she never informed her husband of the child's birth, she brought the child to see him three days later and allowed him to spend time with the child. She continued to bring the child to the marital home for visits with her husband from April to August 2008. Even though she knew the child was not her husband's she allowed him to care for the child on three separate occasions without supervision. She abruptly stopped contact between child and her husband. He responded by filing for divorce when the child was 10 months old.

After an evidentiary hearing, the trial court found that the facts of the case satisfied the test for establishing equitable parenthood under Atkinson. The trial court determined that prong (1) of Atkinson, requiring the husband and child to mutually acknowledge a realtionship as father and child, or the mother of the child has cooperated in the development of such a relationship ofover a period of time prior to the filing of the complaint for divorce, despite the fact that the child was too young to acknowledge the parent child relationship, where the defendant allowed plaintiff to have weekley contact with the child prior to divorce.

The COA found that the weekly contact between the father and infant was not sufficient to establish the first prong of Atkinson given facts showing that defendant never really held plaintiff out to be the father, she only provided him with information about the pregnancy via text message and e-mail, and did not call him when she was in the hospital. Further, the COA was persuaded that defendant was not cooperating in facilitating a parent child relationship between plaintiff and the child because she did not allow him to participate in the child's medical appointments and made excuses to prevent him from seeing the child. Further, the COA noted that plaintiff did not provide financial support to the child and waited nearly two months to take legal action after defendant cut off his contact with the child. Consequently, the COA reversed the case, holding that plaintiff was not the child's equitable parent.

Despite being a 3 page unpublished opinion, this case raises some interesting considerations surrounding how to treat the equitable parent doctrine with regard to an infant or toddler. Essentially, an infant or toddler will almost always be considered to young to "mutually acknowledge a parent child relationship." Thus, the only way to satisfy (1) of Atkinson is if the mother cooperates to facilitate a parent child relationship between her "love child," and the husband she is or was cheating on. This cooperation by the cheating mother is necessary to establish (1) of Atkinson even where the husband wants to participate in the child's life.


Since it is unrealistic to expect a cheating spouse to be "cooperative" it could perhaps be said that a husband seeking equitable parenthood of an infant or toddler could never satisfy (1) of Atkinson if cooperation in facilitating a parent child relationship requires the cheating spouse to go out of her way to make the husband part of the child's life. It seems that there would be little reason for a mother to allow even minimal contact and participation between a child she knows is not her husband's child and the husband, unless she was trying to facilitate a relationship between the two.

Consequently, where an infant or toddler is involved, the "cooperative" element of Atkinson should not require daily contact, or a certain type of communication (i.e., telephone versus e-mail), but should instead look to the reasons behind the level of participation whether minimal or extensive. In such a circumstance the trial court is in the best position to assess the mother's credibility and to determine whether the facts establish cooperation sufficient to establish (1) of Atkinson. Unless there is a complete absence of facts illustrating cooperation, the trial court's determination of whether (1) of Atkinson is established with regard to an infant or toddler after an evidentiary hearing should not be disturbed.

The question remains: how likely is it that a husband can actually establish (1) of Atkinson where the child is an infant or toddler? Seemingly, not very likely. Although there is no written age limitation for application of the equitable parent doctrine, common sense dictates otherwise.