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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reversed the termination of Respondent-Mother’s parental rights to her minor child in In the Matter of V. M. Inman, unpublished opinion per curiam of the Court of Appeals, issued April 9, 2013 (Docket No. 313055).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In a recent case, In the Matter of Kloosterman, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2013 (Docket No. 312138), the Court of Appeals had the opportunity to examine the meaning of MCL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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