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Labels: appeal, appeal of termination of parental rights, best interest, due process, Family, full retroactivity, In re Gach, Law, limited retroactivity, Michigan, prior termination, termination of parental rights

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custody and control of their children that is protected by the due process clause of the Fourteenth Amendment of the United States Constitution. The court’s failure to sua sponte appoint counsel did not, however, deprive Respondent of due process. The court has interpreted MCR 3.915(B)(1) to require “affirmative action on the part of the respondent to trigger the appointment and continuation of appointed counsel in all hearings which may affect the respondent’s parental rights.” In re Hall, 188 Mich App 217, 218; 469 NW2d 56 (1991).

Labels: appeal of termination of parental rights, Court of Appeals, DHHS, MCR 3.915(B), michigan court of appeals, termination of parental rights, termination of parental rights appeal

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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 However, recently the Court of Appeals decided in In re Matter of Burton (Case No. 313448) in an unpublished decision that a mother’s parental rights were properly terminated because she exposed the children to the father’s domestic violence and the criminal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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Labels: adjudication trial, appeal of termination of parental rights, central registry, child welfare, due process, In re CR, In re Sanders, Montcalm County, one parent doctrine, parental fitness

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The Court of Appeals in an unpublished per curiam opinion reversed and remanded the Circuit Court order in a termination of parental right case. The Court of Appeal held that Circuit Court failed to identify any statutory basis for terminating respondent’s parental rights, In re Cheeks, October 15, 2013 (Docket No. 315523). The Petitioner alleges that the child was sexually abused and sought to terminate respondent-mother’s parental rights under MCL 712A.19b(3)(i), (g), and (j). The Circuit Court terminated respondent’s parental rights in part, because mother maintained contact with her boyfriend. The Court of Appeals reasoned that, while certain evidence tends to indicate that the boyfriend abused the child, there is also an indication that the child’s father could have abused the child. The Circuit Court did not state the statutory ground upon which it relied to terminate mother’s parental rights. It was unclear from the record who abused the child -- the child’s father or the mother’s boyfriend. However, the Court of Appeals noted that if the boyfriend abused the child, then respondent-mother would certainly be in a position to protect the child from the alleged abuse and, in that instance her rights would be justifiably terminated. The question that remains is what reasonable steps could respondent-mother have taken to prevent the abuse from the child’s father.

Labels: additional findings needed, appeal of termination of parental rights, reversed and remanded, statutory grounds for termination, Wayne County

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The Court of Appeals affirmed the termination of a mother's parental rights because she was the victim of domestic violence in In re Hopkins-Webster (unpublished August 13, 2013, Docket 315194). The opinion is troubling. It does not appear that the child was a victim of domestic violence or that mother failed to protect the child. For certain, she was somewhat in denial about her status as a domestic violence victim and continued to live with the abuser. When she complained on appeal that the DHS did not offer enough reunification services, the Court of Appeals responded that DHS does not have to provide services when "termination is the goal." Once again, the COA cited In re HRC for this proposition, but HRC was a very different case -- in In re HRC there were aggravated circumstances which by statute allows a trial court to terminate parental rights at the initial dispositional hearing and without any reunification services. The Court of Appeals should not rely on HRC to deny services in a non-aggravated circumstances case. This issue is being challenged in the Michigan Supreme Court in In re Moss (Supreme Court Docket 147519).

Labels: appeal of termination of parental rights, Court of Appeals, domestic violence, in re Moss, michigan supreme court, statutory grounds for termination

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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 a recent case, In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138), the Court of Appeals had the opportunity to examine the meaning of MCL 712A.2(b), the provision which permits a trial court to take jurisdiction over the child in a child welfare proceeding. In the case, Respondent-Father was appealing an order terminating his parental rights to his minor child. The petition had been filed by Respondent-Father’s parents, who were the minor child’s grandparent-guardians. The minor had lived with the grandparents for several years, and after unsuccessful attempts at convincing Respondent-Father to let them adopt the child, they filed the petition under MCL 3.977(2). Interestingly, when the grandparents filed the petition, Respondent-Father was serving a 6-20 year sentence for conducting a criminal enterprise. However, in May 2012, the Court of Appeals reversed that conviction in People v Kloosterman, 296 Mich App 636; 823 NW2d 134 (2012). The Trial Court determined that it has subject matter jurisdiction under MCL 712A.2(b)(1) and (2), and terminated Respondent-Father’s rights to the minor child under MCL 712A.19b(3)(g). On appeal, the Court of Appeals, using the plain meaning doctrine, reversed the Trial Court’s order. The Court noted that the Trial Court had improperly expanded the meaning of MCL 712A.2(b)(1) and (2) in an effort to bring the child with the Trial Court’s jurisdiction. The Court noted that subsection (1) could not apply because “parent or other person legally responsible” clearly would apply to the grandparent-guardians, and not the father, and subsection (2) could not apply, because the plain meaning of that section did not encompass “the broader social environment of the child.” In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138). Since the Court reversed based on the jurisdictional issue, it never reached the statutory ground(s) or best interest determination. In light of the Respondent-Father’s conviction being overturned, it will be particularly interesting to see how these analyses might change should another petition be filed, and whether or not proper jurisdiction can be found in the first place.

Labels: appeal of termination of parental rights, appellate review, child welfare, criminal conviction reversed; statutory interpretation; appeal, guardians, jurisdiction over the child, plain meaning

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I attended a fantastic SCAO Child Welfare Seminar on February 22, 2013 on "Building a Legal Arsenal to Defend Clients." One of the major recommendations/themes I heard repeated during that conference pertained to what a non-respondent parent should do if the trial court is looking to take jurisdiction of the child due to allegations against the other parent. It is likely that I noted this issue because I have a case pending on appeal where the trial attorneys did not make any attempt to protect the rights of the non-respondent parent, who was the father of the child, but had recently divorced from the child's mother. Several presenters emphasized that the non-respondent parent should request that the child be immediately placed with that non-respondent parent. The only reason a trial court would not make such a placement is if the trial court made a finding that the non-respondent is an unfit parent. Unfortunately, the practice in many counties is to accept a plea to jurisdiction from the parent against whom the allegations have been made, which in turn drags in the non-respondent parent, even though that parent is fit, and even though none of the allegations of abuse and neglect have anything to do with the non-respondent parent. There is a legal presumption that favors a fit parent, so there is no reason that a child should be placed in foster care, or even with another relative, when the non-respondent parent is willing and able to take his child into his home and become the custodial parent.

Labels: appeal of termination of parental rights, child welfare, immediate placement, jurisdiction over the child, termination of parental rights

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