In the matter of In re B. Hadd, Minor, No: 337095,
337097, the termination of parental rights of both parents by the lower court
was upheld by the Michigan Court of Appeals (MCOA). The application of the MCOA
order is being held in abeyance pursuant to the order of the Michigan Supreme
Court, SC: 156604 because the Court believes the decision in the case of In re Hill, Minors (No.155152) presently
before it may resolve a similar issue raised in the Hadd application for leave to appeal.
Facts:
The trial
court found that grounds for terminating respondents’
parental rights were established under MCL 712A.19b(3)(c)(i), (c)(ii), (g),
(j), and (l). The respondent-mother had
not addressed her substance abuse issues during the 24 months the child was
under the court’s jurisdiction; nor did she seek help for her mental health
issues. The evidence provided, concluded the MCOA, was sufficient to find the
grounds for terminating her rights under Sec. 19b(3)(g) and (j).
The respondent-father
argued that by terminating his parental rights to his child, the trial court
violated his rights under the Michigan Medical Marihuana Act (MMMA), MCL
333.26371 et seq. Citing MCL 333.26424(a), he contends that he could not be
denied custody or have his parental rights terminated because of his continued
medical use of marijuana.
Medical Marihuana use and parental rights.
A parent’s right to custody or visitation when the parent
holds a valid medical-marijuana card is addressed in MCL 333.26424(d), which
provides:
“A person shall not be denied custody or visitation of a
minor for acting, in accordance with this act, unless the person’s behavior is
such that it creates an unreasonable danger to the minor that can be clearly
articulated and substantiated.”
The MCOA rejected the
father’s reliance on the statute for two reasons:
1.
He is not currently entitled to claim
protection under the MMMA because his medical-marijuana registry card expired
in February 2016. Respondent-father never presented any evidence that his card
was renewed or that he continued to have a medical need for marijuana.
2.
Second, the record does not indicate
that the trial court denied respondent-father custody or terminated his
parental rights because he obtained a medical-marijuana card or because of his
actions in accordance with the MMMA.
According to the trial court, his rights were terminated
because of his failure to cooperate with the terms of his treatment plan,
failure to explore alternative treatment options as recommended in his
psychological evaluation and his failure to present evidence of his condition
justifying a medical need for marijuana or that marijuana was a recommended
treatment for it.
The MCOA reviewed the best interests’ standard and found
that the termination of both parents’ rights was in the best interests of the
child. Both parents were non-compliant with treatment plans. The father
contends that apart from his marijuana use, there was no evidence of neglect—noting
that his supervised visits were appropriate. However, he never made the effort
to progress beyond supervised visitation.
The matter is now before the Supreme Court awaiting the
decision in In re Hill, Minors, which involves the issue of
whether the collateral attack rule bars a challenge to the lower court initial
exercise of jurisdiction. The same issue was raised by the father in Hadd arguing that the trial court
violated MCR 3.971(B)(4) by failing to advise him at the time of his plea that
the plea could be used as evidence in a later proceeding to terminate his
parental rights.
We will keep you advised of the Supreme Court’s decision
on that issue.
Labels: best interests of child, child welfare appeal, In re Hill, medical marihuana, Michigan Medical Marihuana Act, termination of parental rights, treatment plan
