The
Michigan Supreme Court has directed that, when finalizing adoptions, trial
courts must use specific language on the record, indicating that no appeal is
pending in the underlying termination of parental rights case.
Pursuant to an order denying leave to appeal
in In re Jackson (Docket
No. 152404), the Supreme Court instructed that, based on In
re JK, 468 Mich 202 (2003), any trial court finalizing an
adoption must include the following on the record:
“I have determined that any appeal of the decision to
terminate parental rights has reached disposition, that no appeal, application
for leave to appeal, or motion for rehearing or reconsideration is pending, and
that the time for all appellate proceedings in this matter has expired.”
As a result of the Supreme Court’s directive,
the State Court Administrative Office has already revised forms PCA
321, PCA 321a, and PCA 321b to reflect the new requirement.
In Jackson
(Docket
Nos. 325838 and 325839), the Court of Appeals ruled that the
parental rights of the respondent-father and respondent-mother were properly
terminated by the Ingham County Circuit Court and the trial court did not err
in finding that termination of rights was in the child’s best interests.
On September 10, 2015, the appeals court denied
a motion for reconsideration. On that same day, the Ingham County Circuit Court
finalized the child’s adoption.
Pursuant to MCR
7.215(F)(1)(a), unless otherwise ordered by the Court of
Appeals or the Supreme Court, or provided for in the court rules, a Court of
Appeals judgment “is effective after the expiration of the time for filing an
application for leave to appeal to the Supreme Court, or, if such an
application is filed, after the disposition of the case by the Supreme Court.” The
Ingham County Circuit Court violated this rule by forging ahead with the
adoption before the Court of Appeals judgment was final.
Further, MCL
710.56(2) says that, if an appeal of right
from an order terminating parental rights has been filed, the trial court “shall
not” order an adoption until one of the following occurs:
· - the petition for rehearing is
granted and, at the rehearing, the order terminating parental rights is not
modified or set aside, and the period for appeal as of right to the Court of Appeals
has expired without an appeal being filed.
· - the petition for rehearing is
denied and the period for appeal as of right to the Court of Appeals has
expired without an appeal being filed.
· - the Court of Appeals affirms the termination
of parental rights order.
On October 6, 2015, the respondent-father timely
filed an application for leave to appeal with the Supreme Court. However, appellate
counsel did not discover that the trial court had finalized the adoption until
after the application was filed. Upon learning this information, appellate
counsel immediately notified the Supreme Court clerk.
After the Supreme Court was informed of the
adoption, it issued the order declaring that In re JK had been violated and instructing the trial courts to make
certain findings on the record when finalizing adoptions, in order to prevent
this type of procedural mistake from again happening.
Notably,
Justice Bridget M. McCormack concurred with the decision to deny leave to
appeal in Jackson, but expressed
“reservations” about relying on MCL 712A.19b(3)(l) to terminate parental rights. That statute says a court may
terminate rights to a child if clear and convincing evidence show that the
parent’s rights to another child were also terminated in a prior proceeding. In Jackson,
a court had previously terminated the respondent-father’s parental rights to another
child.
According to Justice
McCormack, MCL 712A.19b(3)(l) raises “significant constitutional
questions” because it creates a presumption that a parent currently before the
court is unfit. “When someone is accused of a crime, due process does not
permit the state to put forth evidence of a prior conviction as sufficient
proof to convict him or her of the new charge,” she said. “I do not see why
similar process is not due a parent in jeopardy of losing the constitutional
right to control the care and custody of his or her children.”
Labels: adoption, appeal, appeals, Family, family law, In re JK, Law, Michigan, Michigan Family Law, Michigan Family Law Appeal, Michigan Family Law Appeals, michigan supreme court, termination of parental rights
