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Under In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011), a parent’s parental rights cannot “be terminated solely because he or she was a victim of domestic violence.” However, recently the Court of Appeals decided in In re Matter of Burton (Case No. 313448) in an unpublished decision that a mother’s parental rights were properly terminated because she exposed the children to the father’s domestic violence and the criminal activities. The court compared the case to Plump, stating that in that case the court had upheld termination under MCL 712A.19b(3)(c)(i) (“conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age”) where the children had been exposed to domestic violence and exposed them to “drug use and unsafe living conditions.” The court also found that two other bases for termination were proper: MCL 712A.19b(3)(g) (“the parent, without regard to intent, fails to provide proper care or custody for the [children] 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”) and MCL 712A.19b(3)(j) (“[t]here is a reasonable likelihood, based on the conduct or capacity of the parent, that the [children] will be harmed if he or she is returned to the home of the parent”). Under these bases, the court again noted that the father “posed a substantial risk to the children” and held that the mother, by failing to end her relationship with the father, exposed them to activities that satisfied the statutory requirements. In an impassioned dissent, Judge Krause argued that the majority was upholding a termination of parental rights solely because the mother was a victim of domestic violence. Her words echoed her concurrence in In re Sehy, unpublished per curiam opinion of Court of Appeals, issued August 14, 2012 (Docket 306370 & 306371). There, she noted that the effect of domestic violence on the children is proper to view for termination cases, but that in Sehy, there were only generalized, presumed effects on the children. She argued that there should have been affirmative proof offered by the state to prove the effect on the children. In Burton, Judge Krause argued in her dissent that this case was distinguishable from Plump because in Plump the terminated parent was using drugs herself and was maintaining the home in improper conditions in addition to having a relationship with a person who had not only abused her, but had directly abused the children. In Burton, the father had never abused the children and only the father engaged in criminal activities. Judge Krause noted that “the only concern upon which termination was based, was her husband’s infliction of violence upon [her].” Judge Krause argued that the direct impact on the children is what should be considered. For these reasons, along with other bases of objection, Judge Krause stated that she would have sent the case back to the Trial Court for reconsideration.

Labels: appeal of termination of parental rights, Concurring Opinion, Court of Appeals, dissenting opinion, domestic violence, Ingham County, Judge Krause

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Call it a pet peeve of mine, but it annoys me when the COA miscites case law. One such arena where this frequently occurs is child welfare law. Too many times, the COA miscites In re HRC for the proposition that services are not required if termination is the goal. That proposition is true only in aggravated circumstances cases. But oftentimes the COA cites that proposition when there are not aggravated circumstances, but apparently just as a way of bypassing DHS's obligation to make reasonable efforts to reunify the parent and child -- basically as a short cut to shut down the parent's argument on appeal that DHS failed to make reasonable efforts. So I was happy to read this morning an opinion that actually correctly cited In re HRC -- In re Mueller, issued March 18, 2014 (Docket 316861). No services were required because termination was the goal, but that was because it was an aggravated circumstances case (the parent failed to protect the child from serious sexual abuse) and in aggravated circumstances, parental rights can be terminated at the initial disposition. DHS is not obligated to make reasonable efforts to reunify in aggravated circumstances cases.

Labels: aggravated circumstances, appeal of termination of parental rights, Court of Appeals, In re HRC, no services if termination is the goal, statutory grounds for termination, termination at initial disposition

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On February 6, 2014, the Michigan Court of Appeals issued People v Lubkin (Case No. 310359), an unpublished decision vacating a trial court’s conviction of Attorney Lubkin for criminal contempt. In accordance with prior plans, on April 12, 2012, Attorney Lubkin and a client had lunch at a restaurant. At this same time an empaneled jury on a criminal case entered the restaurant accompanied by a judicial advisory assistant, MacMillan. Attorney Lubkin was not involved in any way in the case. While the jury was entering, MacMillan testified that he heard Attorney Lubkin say the word “guilty” at which time he asked the attorney not to talk to the jury. MacMillan testified that Attorney Lubkin responded, “What I can’t say the word guilty? What if I say the word innocent?” Attorney Lubkin and his client then joined other companions and had a brief conversation that involved use of the words “guilty,” “not-guilty,” and “innocent.” MacMillan could hear these words. The client of Attorney Lubkin’s testified that the legal conversation was in regards to a personal matter. The Trial Court convicted Attorney Lubkin for criminal contempt for these actions. The court held that the attorney “willfully and deliberately made a statement before this jury that could interfere with the functioning of the Court.” Under Michigan law, a conviction for criminal contempt requires that the prosecution prove beyond a reasonable doubt that the defendant willfully disregarded or disobeyed the authority or orders of the court. The Court of Appeals noted that wilful in the context of criminal cases requires “evil intent.” The Court of Appeals found that the prosecution did not prove beyond a reasonable doubt that Attorney Lubkin acted willfully. The Court of Appeals specifically noted that the Trial Court’s claim that Attorney Lubkin is a “smark aleck” is not proof that he, an experienced attorney, was acting willfully to disregard the court. Further, Attorney Lubkin and his companions had plans to meet at the restaurant and he had no reason to know the jury was empaneled for a criminal case. In addition, the court noted that Attorney Lubkin’s conduct was consistent with having a conversation with his companions. For example, his alleged actions of looking toward the jury was explained by him and his client as looking at a television behind the jury. Though the Court of Appeals did not base its opinion on the issue, interestingly, the court discussed that it was not convinced that saying the word “guilty,” even if intentionally said in the presence of the jurors, rose to the level of criminal contempt. The court noted that there are “First Amendment concerns with finding an individual in contempt for making a comment in a public area.” The court noted that normally manner restrictions on speech in public, but not content restrictions, are lawful. However, the court did not address the issue fully because of its finding that the defendant did not act wilfully. I wonder if, the jury having heard the stray comments by Attorney Lubkin in the restaurant, the defendant could have filed a motion for mistrial of the criminal case because of jury taint?

Labels: attorney speech, criminal appeal, criminal contempt, first amendment, free speech, Genesee County, guilty, Jury, wilful violation of court order

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