Speaker Law
Blog

Labels: appeal, appeals, Articles, Family, family law, lansing, Law, Michigan, Reverse, reversed trial court, vacate, vacate trial court

---

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reversed the termination of Respondent-Mother’s parental rights to her minor child in In the Matter of V. M. Inman, unpublished opinion per curiam of the Court of Appeals, issued April 9, 2013 (Docket No. 313055).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

---

A win for gun advocates and privacy advocates alike was recently decided when the Michigan Court of Appeals addressed an issue of first impression: does the Second Amendment bar the prosecution of an individual for possessing or using a firearm while intoxicated under MCL 750.237, where the individual is in their own home? People v Deroche, published opinion of Michigan Court of Appeals, issued January 29, 2013(Docket 304759). Reportedly, Deroche was intoxicated and inside a home with a gun. But once inside the home, police officers found that Deroche was not in actual possession of the gun. In fact, Deroche was located on the upper level of the home, away from the gun which was located on the first level. Still, he was arrested for the possession of a firearm while intoxicated. The Court of Appeals found that the infringement of Deroche’s Second Amendment rights under these circumstances was unconstitutional. The Court looked mainly to District of Columbia v Heller, 554 US 570 (2008), which provides, in essence, that the Second Amendment grants individuals the right to keep and bear arms for protection. Courts acknowledge, as did the Court of Appeals here, the recent problems with handgun violence in the United States and the apprehension surrounding this issue. But in the end, the Court of Appeals agreed with Heller that the Second Amendment trumps the policy decisions involved with this issue because the rights vested under the Second Amendment are sacred constitutional rights. Of Course, limitations on Second Amendment rights do exist for felons, the mentally ill, etc. But the big concern in this case is the ban of handguns in the home because of its limiting effect on an individual’s ability to protect their home and family as is expressly authorized in the Second Amendment. The Court did not decide whether MCL 750.237 is constitutional. Instead, it answered two dispositive inquiries: (1) whether MCL 750.237 regulated conduct within the scope of the Second Amendment as it has historically been understood and (2) whether the government can justify, under an intermediate scrutiny standard, the burden placed on Deroche. Again citing Heller, the Court reasoned that Deroche’s conduct in this case was protected by the Second Amendment because he was acting as a law-abiding citizen. Accordingly, he had a right to bear arms in his home as a means of self-defense. Furthermore, while the government’s objective to prevent intoxicated individuals from committing crimes with handguns is important, the infringement on Deroche’s Second Amendment rights was not substantially related to that objective. In the end, the Court stated that Deroche’s possession of the gun when the police entered the home was constructive, rather than actual; and as a practical matter, applying MCL 750.237 to Deroche under the circumstances involved in this case would unreasonably force a person to choose between possessing a firearm in his or her home and consuming alcohol.

Labels: constructive possession, criminal appeal, Michigan, michigan court of appeals, Novi, protection of property, reversed trial court, right to bear arms, right to privacy, second amendment

---