While parenting time between the preliminary hearing and
adjudication and after the termination petition is filed are controlled by
court rules (MCR 3.965(C)(7)(a); MCR 3.977(D) ) and statutes (MCL 712A.13a(13) ;
MCL712A.19b(4)), visitation after adjudication is controlled by the court.
Under In re Laster,303 Mich App 485, 2013, the Court of Appeals held that termination of parental
rights, “In the absence of a court rule or statute, the issue of the amount…and
conditions of parenting time is left to the sound discretion of the trial court…”
This decision allowed a trial court to deny a parent whose child had
been removed from parental care from having parenting time with their child –
even during the dispositional phase of the case when the goal of DHHS is to
reunify the parent and child.
That is how matters stood until In re Newman, Minors, (Nos. 329063, 329076, unpublished,
9/29/2016), an opinion which put a chink in the armor of the Laster case. Newman was also an appeal of a termination of parental rights. The
results, however, were vastly different. The Newman court reversed the trial court decision and remanded the
matter back to evaluate the parents, prepare a parent-agency plan, order
visitation and continue monitoring in order to properly determine a final disposition.
Of interest is footnote 5, addressing the issue of
visitation, which was not argued on appeal and therefore not properly before
the court. The court’s discussion, however, is telling.
In the court’s view, “the inability of the department to observe
the children and parents together…greatly limited the facts available for the
determination of the factual questions before the court, and…greatly increased the likelihood of
error as to those questions.”
“Unfortunately,” the Court of Appeals stated “there does not
appear to be any case law providing guidance as to when a denial of all
services including even supervised visitation is an abuse of discretion, and as
noted above, neither the magistrate nor the judge provided any grounds for that
denial other than that it had the discretion to do so.”
“If the only test is whether the court has such discretion,
see MCL 712A.19b(4), then it would seem that the discretion cannot be abused,
i.e. that the discretion is wholly unfettered and unreviewable. It is questionable
whether this was the legislature’s intent and whether it comports with due
process.”
“In the absence of briefing on the issue, however, we will
not explore the issue here other than to
note its potential
significance. Additionally, we also note that that the problem is
compounded
by the fact that respondents were apparently not appointed
counsel when the initial denial of
parenting time occurred.” (emphasis added)
Labels: adjudication, appeals, Court of Appeals, Family, In re Laster, In re Newman, Law, Michigan, Michigan Appeals, Michigan Family Law Appeals, parenting time, termination of parental rights
