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The Court of Appeals published two cases this week in child welfare cases. The first In re Kanjia (Docket 320055) examined whether the Michigan Supreme Court's decision in Sanders applied to appeals from an order terminating parental rights and also whether Sanders applied retroactively to cases still pending when Sanders was decided. The COA concluded that Sanders applied and an appeal post-termination was not a collateral attack on jurisdiction. On the retroactivity question, the COA concluded that Sanders would have limited retroactivity for those cases where the issue of the one parent doctrine was raised in trial and on appeal. I disagree with this holding in part. The facts of Kanjia was that the parent's attorney did not raise the issue in the trial court, but also did not raise it on appeal, and in fact, only addressed the issue upon order of the court. Limited retroactivity shoul0l apply to all cases, regardless of whether the issue was raised, and especially if it has been raised somewhere, even if only for the first time on appeal. The second case is In re McCarrick/Lamoreaux (Docket 315510), where the COA analyzed whether there is an appeal by right from a removal. The court rules says that there is an appeal by right from "an order of disposition placing a minor under the supervision of the court or removing the minor from the home[.]” The COA interpreted that to me mean that a parent did not have an appeal from the initial removal (which often occurs on an emergency basis at the very beginning of the case). Instead, the COA construed this court rule to mean that the appeal was only from an order of disposition, whether it was a dispositional order removing the child or a dispositional order placing the child under the supervision of the court (which could include in-home placement).

Labels: appeal by right, child welfare, collateral attack, Court of Appeals, due process of law, In re Gazella, In re Hatcher, In re Sanders, MCR 3.993, removal, retroactivity, termination of parental or rights

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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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In a recent case, In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138), the Court of Appeals had the opportunity to examine the meaning of MCL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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