Speaker Law
Blog

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

---

In re Orozco Minors , a rare published termination of parental rights case, the COA reversed a decision of the Macomb County Family Court terminating respondents’ parental rights when they were deported to Guatemala.
The case involved three respondents who were Guatemalan immigrants (husband, wife, and wife’s adult daughter). Between them, the respondents had four children. In 2005, DHS investigated the male respondent for alleged sexual abuse which was never substantiated. Another investigation followed in 2006 and the kids were removed from the home and DHS filed a petition to terminate parental rights on two of the respondents. After a combined trial, the court found that the petitioner failed to meet the burden of showing a statutory basis for termination by clear and convincing evidence, but took jurisdiction over the children anyway.
After failing to provide services and bring the children for scheduled visits, DHS phoned the INS and intentionally caused their deportation. At a 2007 hearing, the family court found that the petitioner’s actions were “morally repugnant” and noted that, despite the lack of cooperation from DHS, respondents still made attempts to visit the children.
DHS again sought to terminate parental rights, supplementing the original petition based on respondents’ alleged failure to attend visits and also because on the fact that respondents were deported. Testimony at the dispositional hearing revealed the caseworker’s extreme lack of effort to: (1) find the respondents services (to comply with agency agreement) in Guatemala, or, (2) send the children home to Guatemala with their parents. Nonetheless, the court found termination appropriate under §19(b)(3) based on the respondents’ inability to provide proper care and custody for the children because of their deportation.
The COA, citing United States Supreme Court, held that the family court could not properly terminate respondents’ parental rights on §19(b)(3) because the petitioner intentionally set out to create the ground for termination (based on deportation). By doing so, the petitioner violated respondents’ due process rights.
In addition to reversing on statutory and constitutional grounds, the COA held that the family court erred in its finding that termination was not clearly contrary to the children’s best interests. It cited the fact that the children are bonded with their parents, the only time they failed to visit was petitioner’s fault, and no abuse allegations were ever substantiated. In fact, the COA the record supported the COA conclusion that termination would harm the children as they would lose ties to their Guatemalan culture.
The COA further held that the family court’s continued exercise of jurisdiction over the children based on the supplemented petition was contrary to substantive due process because it constituted a de facto termination based on less than clear and convincing evidence of parental unfitness.
In this case, the actions of DHS, unnecessarily ripped a family apart. In many cases, these “morally repugnant” policies and actions are resolved by the family court before a family is subjected to prolonged separation. When it is not, as in this case, families suffer. Nobody can say for certain how frequently these alarming scenarios occur, but this Opinion definitely highlights the need for consistency on the part of all players in a termination proceeding. If an agency has too much power and acts contrary to a child’s best interests, the safety nets (L-GALS, Referees, Family Court Judges) must react swiftly, or nobody will be there to break the family’s fall.

Labels: deportation, DHS, Macomb County, Michigan, termination of parental or rights

---