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In the published opinion Doe v Boyle, Docket No. 320102 (September 22, 2015), after a lengthy battle, the Court of Appeals awarded court-appointed guardian ad litem Thomas Woods costs and attorney's fees for his services on a personal injury suit as a guardian ad litem for the defendant minor child. The plaintiff, by his mother as next friend, had sued the minor child defendant Michael Hand, Hand's foster-care provider, the state of Michigan, DHS, and DHS of Wexford-Missaukee Counties. The procedural history of the case is complicated, but essentially, when Woods first requested costs and attorney's fees after the state of Michigan, DHS, and DHS of Wexford-Massaukee Counties were granted dismissal, the circuit court denied him any costs or attorney's fees and continued to do so in all subsequent hearings where he requested them. In Wood's second appeal, the subject of this blog, the Court of Appeals held that Woods, as a court-appointed guardian ad litem, was entitled to both costs and attorney's fees, citing Court Rules and statutes indicating a guardian ad litem should not be responsible for such costs. See MCL 600.2415; MCR 2.201(E)(1)(c) & (3)(a). The Court of Appeals also held that DHS is responsible for Wood's costs and fees, despite DHS no longer being a party to the action, because Hand (the minor defendant) was a ward of the state, and DHS and the MCI Superintendent were accountable for Hand's care. The Court of Appeals noted that this is a similar outcome to child-protective and delinquency proceedings, and that this is a personal injury suit does not change DHS's responsibility. 

Labels: 320102, appeal, attorney's fees, Boyle, costs, Court of Appeals, DHS, GAL, guardian ad litem, MCL 600.2415, MCR 2.201, Michael Hand, Thomas Woods, ward

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The Court of Appeals reversed the termination of Respondent-Mother’s parental rights to her minor child in In the Matter of V. M. Inman, unpublished opinion per curiam of the Court of Appeals, issued April 9, 2013 (Docket No. 313055). The 14-month old minor had suffered a “complete fracture of the tibia, as well as ‘a green stick fracture’ to his fibula.” However, because Respondent-Mother leaves her minor with her neighbors (Sean and Jessica) while she goes to work, she was unaware of the injuries until she took her child home and went to change his diaper. Upon learning of the injuries, DHS sought temporary jurisdiction of not only the injured child, but also Respondent-Mother’s three other children (who were not living with her at the time). DHS also sought immediate termination of her parental rights as to all of her children. The referee found jurisdiction, and terminated Respondent-Mother’s rights as to the injured minor, but not the other three children. Subsequently, the Trial Court adopted the referee’s findings and Respondent-Mother appealed. The Court of Appeals reversed, stating that it was left with a “definite and firm conviction that a mistake ha[d] been made.” Specifically, the Court of Appeals noted that the minor had been left alone with Sean for five hours while Respondent accompanied Jessica and Jessica’s minor to the hospital (as Jessica did not have a car), and immediately after the child’s injury Sean disappeared in an attempt to avoid contact with police (later to be arrested on warrants for unpaid child support and domestic violence), and yet, “inexplicably, DHS worker Kimberely Greer testified that neither Sean nor Jessica were ‘part of our specific investigation.’” In the words of the Court, “the rush to terminate was unnecessary, especially in light of the fact that DHS admitted it conducted what can only be described as an incomplete investigation.”

Labels: appeal, appeal of termination of parental rights, DHS, failure to investigate, investigation, jurisdiction over the child, Michigan, reversed trial court, St. Clair County

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In re Orozco Minors , a rare published termination of parental rights case, the COA reversed a decision of the Macomb County Family Court terminating respondents’ parental rights when they were deported to Guatemala.
The case involved three respondents who were Guatemalan immigrants (husband, wife, and wife’s adult daughter). Between them, the respondents had four children. In 2005, DHS investigated the male respondent for alleged sexual abuse which was never substantiated. Another investigation followed in 2006 and the kids were removed from the home and DHS filed a petition to terminate parental rights on two of the respondents. After a combined trial, the court found that the petitioner failed to meet the burden of showing a statutory basis for termination by clear and convincing evidence, but took jurisdiction over the children anyway.
After failing to provide services and bring the children for scheduled visits, DHS phoned the INS and intentionally caused their deportation. At a 2007 hearing, the family court found that the petitioner’s actions were “morally repugnant” and noted that, despite the lack of cooperation from DHS, respondents still made attempts to visit the children.
DHS again sought to terminate parental rights, supplementing the original petition based on respondents’ alleged failure to attend visits and also because on the fact that respondents were deported. Testimony at the dispositional hearing revealed the caseworker’s extreme lack of effort to: (1) find the respondents services (to comply with agency agreement) in Guatemala, or, (2) send the children home to Guatemala with their parents. Nonetheless, the court found termination appropriate under §19(b)(3) based on the respondents’ inability to provide proper care and custody for the children because of their deportation.
The COA, citing United States Supreme Court, held that the family court could not properly terminate respondents’ parental rights on §19(b)(3) because the petitioner intentionally set out to create the ground for termination (based on deportation). By doing so, the petitioner violated respondents’ due process rights.
In addition to reversing on statutory and constitutional grounds, the COA held that the family court erred in its finding that termination was not clearly contrary to the children’s best interests. It cited the fact that the children are bonded with their parents, the only time they failed to visit was petitioner’s fault, and no abuse allegations were ever substantiated. In fact, the COA the record supported the COA conclusion that termination would harm the children as they would lose ties to their Guatemalan culture.
The COA further held that the family court’s continued exercise of jurisdiction over the children based on the supplemented petition was contrary to substantive due process because it constituted a de facto termination based on less than clear and convincing evidence of parental unfitness.
In this case, the actions of DHS, unnecessarily ripped a family apart. In many cases, these “morally repugnant” policies and actions are resolved by the family court before a family is subjected to prolonged separation. When it is not, as in this case, families suffer. Nobody can say for certain how frequently these alarming scenarios occur, but this Opinion definitely highlights the need for consistency on the part of all players in a termination proceeding. If an agency has too much power and acts contrary to a child’s best interests, the safety nets (L-GALS, Referees, Family Court Judges) must react swiftly, or nobody will be there to break the family’s fall.

Labels: deportation, DHS, Macomb County, Michigan, termination of parental or rights

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COA Reverses TPR Case: Says to Trial Court Mind Your Pleas and Q’s

In DHS v Holm, the Court of Appeals reversed a decision terminating respondent’s parental rights after holding that the trial court improperly exercised jurisdiction. The respondent allegedly sexually abused two of his daughters. The abuse allegation was verified as to one of the daughters because respondent’s wife actually walked in on respondent while having sex with their daughter. DHS submitted a petition to the trial court stating that all four of respondent’s children were within the jurisdiction of the court based on respondent’s sexual abuse of two of the girls and past criminality. However, the petition only alleged sexual abuse against two of the girls and contained a paragraph about the instance witnessed by the mother. At a preliminary hearing the mother agreed to plea to that paragraph of the petition. The trial court exercised jurisdiction on that basis alone. The COA held that the trial court may only exercise jurisdiction in such cases where one of the statutory grounds expressed in MCL 712A.2(b) is met. In this instance, none of those grounds existed since it was the mother who agreed to plea to an allegation contained in the petition and not the “respondent” as required by statute. Consequently the trial court could not obtain jurisdiction and the order terminating rights was vacated.

Prior Parental Conduct Can Support Termination Prior to Paternity

In DHS v Dwayne Davis and Karen Jordan, the respondent father claimed that the trial court could not properly consider his criminal conduct while he was only the putative father (before he perfected paternity) to decide whether termination is appropriate pursuant to 712A.19b(3)(g) because, at that time, he did not owe the child a legal duty. The court disagreed, noting that the issue had only been addressed previously in one unpublished case In re Maddox. The Court agreed with the panel in Maddox, this time in a published opinion, holding that even though a putative father may not owe a legal duty to a child, he owes a moral duty as the biological father and he certainly could have offered support to his child. The court further held that the father’s failure to timely perfect paternity (he waited 15 months) could be used against him as evidence of his failure to provide care and custody. The decision appealed to a common sense interpretation found in Maddox where the Court reasoned that adopting respondent’s position as to prior conduct would, “contravene the fundamental purpose of child protective proceedings by excluding from consideration a parent’s conduct no matter how egregious, until paternity was established.” Now this sensible conclusion is binding precedent....conduct of a parent prior to establishing paternity can be used to support termination of his parental rights.

Labels: DHS, MCL 712A.2(b), termination of parental rights

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