The Michigan Supreme Court recently
refused to hear the appeal in In re Maes
(Docket No. 152973). The denial of leave in Maes
means that significant flaws in appellate case precedent have now been left
intact, impacting hundreds of parental rights proceedings.
The application for leave in Maes addressed two issues of increasing
concern:
·
the fact that the Court of Appeals continues to
misapply In re
HRC, 286 Mich App 444 (2009), regarding the services offered
when termination of rights is the goal;
and
·
the fact that the Court of Appeals, in In re Moss, 301
Mich App 76 (2013), erroneously interpreted the burden of proof in MCL
712A.19b(5) as being preponderance of the evidence, rather
than clear and convincing.
Maes Ruling
In Maes,
the child (KM) was placed in foster care and reasonable steps toward reunification
with the father-respondent were ordered. The Michigan Department of Health
& Human Services (MDHHS) presented a reunification plan and, after respondent
successfully met the conditions, KM was returned to respondent’s home, with supervision.
A petition for KM’s emergency removal due to
a domestic incident was later granted. KM was again placed
in foster care and MDHHS sought termination of respondent’s parental rights. MDHHS
also updated its service plan. Although it identified
new goals for the respondent, it did not suggest treatment to help meet the goals.
For example, MDHHS said that respondent would benefit from domestic violence and
parenting skills programs, but it did not suggest anything in particular to assist
him.
The respondent’s parental rights were
ultimately terminated.
In its ruling
affirming the termination (Docket No. 325919), the Court of Appeals
cited HRC, noting that MDHHS is not
required to provide reunification services when termination is the goal. “Therefore,
respondent was not entitled to be offered services by petitioner after the
second removal,” the court said.
The Court of Appeals also relied on Moss, finding that whether the
termination of parental rights is in the best interests of the child “must be
proven by a preponderance of the evidence.”
Leave Denied: The Fallout
The Supreme Court denied leave in Maes on January 29, 2016, without
explanation. This means the erroneous application of HRC and Moss’s inaccurate
interpretation of MCL 712A.19b(5) will continue.
By misapplying HRC, the Court of Appeals is letting trial courts relieve MDHHS of
its statutory obligation to make reasonable efforts to reunify, simply by
announcing that “termination is the goal,” even when it is a non-aggravated
circumstances case, such as Maes. In
fact, the appeals court has cited this “termination is the goal” proposition 59
times as grounds for cessation or avoidance of MDHHS services. However, at
least 16 of those cases did not involve aggravated circumstances. In non-aggravated
cases, invoking HRC cannot alleviate MDHHS’s statutory obligation to
make reasonable efforts toward reunification.
The fundamental rights of parents will
continue to be offended for as long as HRC
is misapplied. Parents are being deprived of the right to direct the care,
custody and control of their children without being afforded reasonable efforts
toward reunification.
In Moss,
the Court of Appeals said that preponderance of the evidence — not clear and
convincing — is required under MCL 712A.19b(5). That statute says:
Moss’s
interpretation of MCL 712A.19b(5) not only contradicts the statutory language
and legislative intent, but also violates due process. The Moss panel concluded that, when the Legislature removed the word
“clearly” from the statute a few years ago, the intent was to impose a preponderance
standard. However, deleting the word “clearly” was not the only change that was
made. In addition, the burden was shifted, and trial courts must now cite a statutory
ground to terminate and the termination must be in the child’s best interests. The
Moss panel also improperly ruled that
a parent’s constitutional rights are lessened once a statutory ground is deemed
applicable.
Moss goes against legislative
intent, as well as constitutional principles regarding the standard of proof in
termination cases. As a result, Moss should
be overturned.
By denying leave in Maes, the Supreme Court has indicated it is not ready to address
these pressing jurisprudential issues. Meanwhile, HRC will continue to be misapplied and the incorrect standard in Moss will be invoked, all to the
detriment of parents across the state.
Labels: best interests of child, Court of Appeals, In re HRC, In re Maes, in re Moss, MCL 712A.19b(5), Michigan Department of Health and Human Services, michigan supreme court, termination of parental rights
