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Child Welfare Act Creates Private Right to Foster Care Payments

Posted on Friday, April 28, 2017

According to a recent (1-27-2017) opinion of the US Court of Appeals, 6th Circuit (D.O.; A.O.;R.O. v  Glisson, Sec. Cabinet for Health and Family Services, ___US____, No.16-5461 (6th Circuit 2017), reversing a district court’s decision, the Federal Child Welfare Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. Sec. 1983.


FACTS: 
As is often the case with important cases, the facts are simple. In 2012, Kentucky’s Health and Family Services brought a Dependency, Neglect and Abuse proceeding against the mother of two boys. The mother stipulated to the charges and the boys were placed in foster care. Plaintiff R.O, the mother’s aunt, sought and secured custody of the children. In Sept. of 2014, the family court closed the action and granted joint custody to both the mother and the aunt, although the boys continued living with the aunt.
R.O. filed a motion with family court seeking foster care maintenance payments. The family court declined to rule so RO turned to the state court arguing:
·            That the federal Child Welfare Act required the state to provide maintenance payments and
·            Failure to make payments violated the Constitution’s Equal Protection and Due Process Clauses.
The Cabinet removed the case to federal court and filed a motion to dismiss. The district court granted the Cabinet’s motion, reasoning that:
·            The Child Welfare Act doesn’t provide private enforceable rights,
·            The family lacked a property interest in the payments and
·            Kentucky’s scheme rationally distinguished between relative and non-relative foster care providers.

The family appealed.
The appellate court cited three sections of the Child Welfare Act, which supports state-run foster care and adoptions for children removed from low income families. First, to be eligible for federal funds, a state must submit a 35-point plan to the Secretary of Health and Human Services. Second, the plan must provide foster care maintenance payments for each child and, finally, once the moneys are spent, the state can be reimbursed by the federal government.

The 6th Circuit saw as the central issues on appeal:
·             Whether the Act confers upon foster families a private right to foster care maintenance payments; and
·             Whether that right is enforceable under sec. 1983.

The 6th Circuit held that the Act confers upon families an individually enforceable right to foster care maintenance payments because:
·             The Act mandates payments “on behalf of each child.” 42 U.S.C sec.672(a)(1),
·             The Act confers a monetary entitlement upon qualified foster families and includes an itemized list of expenses, and
·         The Acts “shall make” language “imposes a binding obligation on the States.”

Both the Supreme Court and the Sixth Circuit have found that laws phrased in the active voice, with the state as the subject, confer individually enforceable rights.
Enforcement under Sec 1983:
Having shown that the statute creates a private there is a rebuttable presumption that the right is enforceable under sec. 1983. Stating that “Absent resort to sec 1983, foster families possess no federal mechanism to ensure compliance with the Act,” the court held that the “Act confers families with an individual right to foster care maintenance payments enforceable under Sec.1983.
Are the Plaintiffs entitled to maintenance payments?
Yes. Section 672(a) restricts the class of children entitle to benefits in two ways; (1) the child must be in Cabinet’s custody—once placed in permanent guardianship, no payments are required and (2) child must be placed in an approved “foster family home.”

The facts supporting the payment:
·             The children were not discharged from the Cabinet’s care because the “order of permanent custody was not on the required form AOC-DNA 9 according to Kentucky law,”
·             The Cabinet didn’t provide evidence that the family court held a permanency hearing or discharged the children from the Cabinet’s care.

Is the aunt’s home an approved “foster family home?”
·             The law provides for two types of foster families—licensed foster homes that provide care for unrelated children and foster homes that provide care for relative children,
·             The Cabinet approved R.O. to be a foster parent

Where the Cabinet fails to make maintenance payments on the distinction between relative and non-relative foster care providers, it violates federal law. Rather any home the State approves as meeting its licensing standards falls within the definition. If Kentucky is denying benefits because the aunt is related to the children, it is violating federal law.
The court reversed the district court’s decision. Upon remand the court shall determine whether the Cabinet maintains responsibility for the children’s placement and care. If the Kentucky discharges the children, the district court shall dismiss the case. If not, the court shall award foster care maintenance payments.

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Unsigned Will May Sometimes Be Admitted to Probate

Posted on Wednesday, December 14, 2016

The probate Court can admit an unsigned will to probate if the proponent of the will establishes, by clear and convincing evidence, that the decedent intended the document to be his or her will. The Michigan Court of Appeals (MCOA) reached this decision in a published opinion (In re Estate of Sabry Mohamed Attia).

Facts: Sabry Attia, father of 4 children, died on Sept. 11, 2014. Attia executed a will on July 8, 1986 and two codicils to the will, one on February 17, 2009 and the other on February 1, 2013. Appellee Mayssa, personal representative, filed a petition to probate the July 1986 will and two codicils. Appellant, Marvat, filed an objection to the probate of the July, 1986 will and codicils and a petition to admit an unsigned will to probate.

Marvat claimed the decedent directed his attorney, to draft a new will and arranged to sign it on September 11, 2014, the day he died. Marvat argues that although MCL 700.2502 requires a will to be signed, MCL 2503 provides an exception to the signature requirement if the supporter of the will shows by clear and convincing evidence that the decedent intended for the document to be his will.

The Wayne County Probate Court granted Mayssa’s Motion for Summary Disposition stating “I think that the language in 2503, relates to a document which is executed but is flawed in the execution. So, I think it’s a bright line rule in Michigan and I certainly welcome the Court of Appeals to address it.”

The COA did address it stating,

1. MCL 700.2503 permits the probate of a will that doesn’t meet the requirements of MCL 700.2502.
2. One of the requirements is that the will be signed by testator or a person chosen by the testator, in the testator’s presence and at his direction. (MCL 700.2502(1)(b)
3. Thus, section 2503 allows admission of a will that doesn’t meet the signature requirement in section 2502 as long as the proponent establishes by clear and convincing evidence that the decedent intended the document to be a will.

The COA didn’t find a Michigan case on point, but did find persuasive a Superior Court of New Jersey, Appellate Division, decision concluding that a New Jersey statute containing nearly identical language to Michigan permits the probate of a will without a signature, but with clear and convincing evidence that the testator intended the document to be a will.


The COA reversed the lower court and sent the matter back for further proceedings. 

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The Courts’ Discretion in Parenting Time Decisions Questioned

Posted on Thursday, November 10, 2016
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)

It seems that, with the right set of facts, the issue of a court’s “unfettered and unreviewable” discretion in parenting time decisions is ripe for appeal. 

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Party didn’t meet MCR 3.206 requirements: Must pay own attorney fees

Posted on Monday, April 25, 2016
An ex-wife who filed a motion to modify a custody order was not entitled to attorney fees associated with the motion, because she was able to pay her own fees and the fees were not the result of her ex-husband’s failure to obey a court order, the Michigan Court of Appeals has ruled.
   In Hayley v Martin (Docket No. 324689), the plaintiff ex-wife filed a motion to modify the custody and parenting-time order, which the trial court granted in part. Afterward, the plaintiff filed a motion for attorney fees pursuant to MCR 3.206(C), which the trial court denied, finding that both parties worked and were responsible for their own fees.
   MCR 3.206(C) says:
“(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.”
   The plaintiff appealed and the Court of Appeals remanded the case, finding the trial court did not adequately address the plaintiff’s fee request.
   On remand, the trial court determined the plaintiff improperly sought appeal costs and post-appeal costs, and so the requested fee amount was reduced. The trial court also held that the billable rate and number of hours claimed were reasonable.
   The trial court ultimately found the plaintiff failed to prove that she could not pay her own attorney fees or that the defendant was able to pay her fees. Because the requirements of MCR 3.206(C)(2)(a) were not met, the trial court denied the plaintiff’s fee request. The trial court also held the plaintiff was not entitled to fees under MCR 3.206(C)(2)(b), because she did not establish that the fees were incurred because the defendant had violated a previous court order.
   Therefore, the trial court held — as it did the first time — that both parties were responsible for their own attorney fees.
    On appeal for the second time, the plaintiff argued the trial court applied an incorrect standard to determine whether she could pay her attorney fees. The Court of Appeals disagreed, finding the trial court adequately considered the ability to pay, as required by MCR 3.206(C)(2)(a).
    In particular, the Court of Appeals noted that the plaintiff had been paying her own legal fees throughout the case. And while the appeals court said the plaintiff had to prove that financial assistance was necessary, it noted that she had already paid $71,000 in attorney fees.
   “Further, plaintiff earned about $62,000 a year and testified that she was paying her attorney $150 a month,” the Court of Appeals said. “Thus, … plaintiff did not prove that she was unable to pay her attorney fees incurred by the filing of her motion to modify the consent judgment of divorce.”
   The Court of Appeals also rejected the plaintiff’s argument that the trial court applied an incorrect legal standard.
   According to the Court of Appeals, the trial court properly found that the plaintiff failed to show the defendant was “living an extravagant lifestyle and earning $200,000 to $400,000 a year.” The appeals court also noted that the defendant had his own attorney fees to pay. Therefore, the trial court correctly held that the plaintiff did not meet her burden of proof under MCR 3.206(C), and the trial court’s ruling was “amply supported by the record evidence.”
   Regarding MCR 3.206(C)(2)(b), the Court of Appeals said the plaintiff did not point to any evidence indicating that she filed her motion to modify custody because the defendant had failed to comply with a prior order. As a result, the appeals court ruled the trial court did not abuse its discretion in finding that the plaintiff was not entitled to fees under MCR 2.306(C)(2)(b).




    “In summary, the trial court did not abuse its discretion in denying plaintiff’s request for attorney fees related to the filing of her motion to modify the custody and parenting time provisions of the consent judgment of divorce,” the appeals court concluded.

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Trial Courts Must Now Use Specific Language When Finalizing Adoptions

Posted on Monday, April 11, 2016
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.”

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Michigan Supreme Court vacates order terminating mother’s parental rights

Posted on Monday, March 21, 2016
The Michigan Supreme Court has peremptorily vacated the termination of a mother’s parental rights, as well as the Michigan Court of Appeals decision upholding that termination.
   As a result, the case has been sent back to the Ontonagon Circuit Court, Family Division, for a new adjudication hearing.
   In In re Jones, Minors (DocketNo. 326252), the Court of Appeals affirmed the termination of the mother’s parental rights, despite acknowledging flaws in how the trial court handled the matter. The appeals court, however, did remand the case so the trial court could re-examine the best interest factors.
   An application for leave to appeal was promptly filed with the Supreme Court.
   In the application, it was argued the trial court violated the mother’s due process rights by not adjudicating her fitness before termination. The trial court had failed to inform the mother of her procedural rights, including her right to an adjudication trial, before issuing its final decision.
   It was also argued that the Court of Appeals, despite noting the trial court had improperly adjudicated the mother, refused to address the merits of the appeal, and in so doing continued to misapply In re Hatcher, 443 Mich 426 (1993). The Supreme Court was asked to clarify that Hatcher does not preclude parents from challenging adjudicatory errors in termination of parental rights appeals.
   In Hatcher, the Supreme Court held that a juvenile court’s subject-matter jurisdiction is established when a petition is authorized at the preliminary hearing. Since Hatcher, Michigan courts have continuously recognized that child-protective cases, including termination of parental rights actions, involve a single proceeding, therefore allowing parents to raise errors that occurred at any point in the proceeding or post-dispositional appeal.
      The Supreme Court granted leave in December 2015 (Docket No. 152595) and limited the issues to:
·         whether Hatcher correctly applied the collateral attack rule to bar a challenge to the adjudication as part of an appeal from a termination of parental rights order, notwithstanding intervening dispositional orders that were appealable of right;
·         if Hatcher incorrectly applied the collateral attack rule, what must a respondent in a termination of parental rights proceeding do to preserve for appeal any alleged errors in the adjudication; and
·         what effect, if any, a party’s failure to utilize an appeal of right offered under the court rules has on that party’s subsequent appeal of that issue, in light of the interests of reasonable finality in child-protective proceedings, which intimately involve the interests and well-being of children while promoting the goal of reconciliation between parents and children.
   After the Supreme Court granted leave, the parties filed a joint motion for immediate consideration. It was stipulated that, under circumstances, the trial court’s ruling should be vacated and the matter remanded for a new adjudication trial.
   On February 17, 2016, the Supreme Court ordered the trial court and Court of Appeals rulings be vacated, and remanded the case for a new adjudication determination.


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Mother who didn’t get 14-day notice granted new termination hearing

Posted on Friday, February 12, 2016

A recent Michigan Court of Appeals ruling in a child-protection case is a reminder of just how important it is for parties, agencies, and the trial courts to be diligent about locating parents, so they are notified of their hearing dates.

 In In re Forgette/Antcliff-Forgette Minors (Docket No. 327620), the Court of Appeals held that a respondent-mother was entitled to a new termination of parental rights hearing because she never received the required 14-day notice.

 The fact that the respondent’s lawyer received notice of the hearing was irrelevant, the Court of Appeals noted. The failure to notify the mother constituted plain error that affected her substantial rights, the court said, vacating the order that had terminated her parental rights.

Facts
   After child-protective proceedings were initiated against the respondent in 2007, the maternal grandmother was named guardian of the children. When the grandmother died in early 2015, the children’s maternal uncle began caring for them.
   A petition to remove the children and terminate the respondent’s parental rights was filed in March 2015. At a March 10 preliminary hearing, the trial court authorized the termination petition and placed the children with the Department of Health and Human Services (DHHS), pending a guardianship with the uncle.
   On March 31, the trial court adjourned a pretrial hearing and set a new hearing date for April 29. A copy of the order was served on the respondent’s lawyer in court on March 31. The order was also served on the respondent by ordinary mail. However, the order was returned to the court as “not deliverable as addressed.”
   The respondent did not attend the April 29 pretrial hearing. A May 5 hearing on the termination petition was scheduled and the proceedings were adjourned. The respondent’s attorney was served in court on April 29. However, there was no indication the respondent received notice of the May 5 hearing.
   On May 5, the trial court adjourned again and scheduled the termination hearing for May 12. The order was served on the assistant prosecutor, the lawyer-guardian ad litem, and the DHHS caseworker.
   The respondent did not attend the May 12 termination hearing, and there was no indication that she had been notified of it. A foster care specialist with DHHS was the only witness, and she testified that she had not tried to contact the respondent because her whereabouts were unknown. The trial court ruled it was in the best interests of the children to terminate the respondent’s parental rights and entered an order accordingly.

Court of Appeals Reversal
   On appeal, the respondent asserted she was entitled to a new termination hearing because she was not provided 14 days’ written notice.
   The Court of Appeals agreed, citing the notice provisions in MCL 712A.19b(2) and MCR 3.977(C)(1), MCR 3.920(D)(3), and MCR 3.921(B)(3). The court also noted that MCR 3.920(G) and (H) provide two exceptions to the notice requirement:
·         Subsequent Notices. After a party’s first appearance before the court, subsequent notice of proceedings and pleadings shall be served on that party or, if the party has an attorney, on the attorney for the party as provided in subrule (D), except that a summons must be served for trial or termination hearing as provided in subrule (B).
·         Notice Defects. The appearance and participation of a party at a hearing is a waiver by that party of defects in service with respect to that hearing unless objections regarding the specific defect are placed on the record.
   Looking to the subsequent notice provision in MCR 3.920(G), the Court of Appeals pointed out the respondent was properly notified that the pretrial hearing would be held March 31, and that she acknowledged she was served with a summons to appear.
   However, the March 31 hearing was not intended to adjudicate the respondent’s parental rights, the Court of Appeals noted. “As such, the summons to appear on March 31, 2015, did not fulfill the requisite 14-day notice of a termination hearing,” the court said. “Given the lack of initial notice, the rule that personal service of notice of an adjourned termination hearing on a respondent is not required, and that service on the respondent’s attorney is sufficient, was not implicated.”
   Other than the March 31 order that was returned as undeliverable, the record was “bereft of any evidence” that the respondent was notified of the hearings on April 29, May 5, or May 12, the Court of Appeals said. “Most significantly, there is no indication that respondent was personally served with a summons 14 days before the termination hearing, as required under MCR 3.920(B)(2)(b), (B)(4), and (B)(5)(a)(i),” the court wrote.
   Also, there was no evidence that the trial court or the petitioner attempted to determine the respondent’s address or serve her personally after the March 31 order was returned as undeliverable, the Court of Appeals pointed out. “Although it is apparent that respondent’s attorney received notice of the termination hearing, the notice served on respondent’s attorney was not sufficient to provide notice to respondent under MCR 3.920(G) because respondent was still entitled to receive a summons for a trial or termination hearing as provided under MCR 3.920(B),” the court said.
   In addition, the Court of Appeals held that the waiver provision in MCR 3.920(H) was not triggered because the respondent did not attend the termination hearing.
   “Accordingly, because the record provides no basis for concluding that respondent was served with a summons or received written notice 14 days before the termination hearing, a plain error occurred,” the Court of Appeals concluded, reversing the trial court and ordering a new hearing.

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