Appeals Court Reverses Trial Court Taking Jurisdiction Over Child
The trial court wrongly held that the statutory grounds for jurisdiction over the respondent-father’s child were established by a preponderance of the evidence, the Michigan Court of Appeals has ruled.
The respondent-father in In re T. Strickland-Miller, Minor (Docket No. 367658) appealed the Kent County Circuit Court order exercising jurisdiction over his minor child, TS, pursuant to MCL 712A.2(b)(1) (parent fails to provide, when able to do so, support, education, medical, surgical, or other necessary care for health or morals, and there is a substantial risk of harm to the child’s mental well-being) and MCL 712A.2(b)(2) (unfit home or environment because of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent).
The Court of Appeals reversed and remanded the trial court’s decision.
“[T] he only allegation in the supplemental petition pertinent to the trial court’s exercise of jurisdiction over TS concerned respondent-father’s failure to identify appropriate or willing relatives or fictive kin to provide care, custody, or support to TS,” the Court of Appeals wrote. “However, it is unclear why respondent-father was required to provide an appropriate relative or fictive kin placement when TS was already situated in an appropriate fictive-kin placement. Therefore, the trial court’s exercise of jurisdiction over TS was clearly erroneous and reversal is warranted.”
The Court of Appeals also agreed with the respondent’s ineffective assistance of counsel argument, finding that his trial attorney failed to object to hearsay testimony provided during the adjudication hearing.
“The statements of the relatives that they were unwilling to care for TS were out-of-court statements offered during the adjudication hearing to prove the truth of the matter asserted,” the Court of Appeals said. “Respondent-father’s trial counsel’s failure to object to this testimony constituted deficient performance because it ‘fell below an objective standard of reasonableness under prevailing professional norms.’”
Judge Michael J. Kelly, Judge Kathleen Jansen and Judge Kristina Robinson Garrett were on the panel that issued the unpublished opinion.
Background
The Department of Health and Human Services (DHHS) petitioned the Kent County trial court to remove TS from his mother’s care because she was previously investigated regarding the death of her first child. At the mother’s request, the trial court ordered that TS be placed with the mother’s godmother. At the time, the mother named another man as TS’s putative father. However, following a paternity test, the trial court declared the respondent-father to be TS’s legal father.
A short while later, the respondent-father was incarcerated and the DHHS filed a supplemental removal petition as to the respondent-father. The petition noted that TS was already in placement with “fictive kin” and sought jurisdiction over TS with respect to the respondent-father under MCL 712A.2(b)(1). The trial court held the statutory ground for jurisdiction was satisfied by a preponderance of the evidence and exercised jurisdiction over TS. The respondent-father appealed that decision. The Court of Appeals reversed the trial court’s order because TS was already in an appropriate fictive-kin placement and the DHHS failed to investigate the names of relatives provided by the respondent-father to care for TS while he was incarcerated.
In May 2023, the DHHS filed a supplemental removal petition with the trial court as to the respondent-father. The petition sought jurisdiction over TS under MCL 712A.2(b)(1) and MCL 712A.2(b)(2). The petition noted the respondent-father was on probation and had an active warrant for his arrest for failing to comply with his probation requirements. The petition also alleged the respondent-father lacked appropriate housing for TS and that he failed to identify any appropriate or willing relatives or fictive kin to provide care, custody or support to TS.
At the adjudication hearing, the respondent-father challenged the allegation, arguing that he provided names of four family members and one fictive kin who were willing and able to provide proper care for TS. A foster-care supervisor testified that the agency’s relative-engagement specialist was informed by the four relatives that they were unwilling to care for TS and that the fictive kin was unresponsive to requests to engage in the assessment process.
The trial court concluded that the allegations in the petition were proven by a preponderance of the evidence and assumed jurisdiction.
The respondent-father appealed.
No Statutory Grounds For Jurisdiction
On appeal, the respondent-father first argued the trial court erred by finding that the statutory grounds for exercising jurisdiction over TS were established by a preponderance of the evidence.
“We agree,” the Court of Appeals said, noting the DHHS “concedes that the trial court clearly erred by exercising jurisdiction over TS under MCL 712A.2(b)(2).”
According to the Court of Appeals, this case presented a factual scenario where child-protective proceedings were first initiated against TS’s mother and a then-unknown father. “After TS was removed from his mother’s care and placed with fictive kin, respondent-father was declared TS’s legal father. Although the supplemental petition alleged, and testimony at the adjudication hearing established, that respondent-father had a lengthy criminal history, there were no allegations made that the home TS resided in was unfit. Rather, the record reflects that TS was doing well in his fictive-kin placement. Therefore, the trial court’s decision to assume jurisdiction on this basis was clearly erroneous, as the DHHS conceded.”
The supplemental petition alleged the respondent-father did not have appropriate housing for TS and did not provide care, custody or support to TS. “It is well settled in Michigan that a parent can provide ‘proper care and custody’ for a child through placement with an appropriate and willing relative,” the Court of Appeals explained. “Additionally, MCL 712A.2(b)(1)(C) provides that ‘[w]ithout proper custody or guardianship’ does not mean a parent has placed the juvenile with another person who is legally responsible for the care and maintenance of the juvenile and who is able to and does provide the juvenile with proper care and maintenance.”
The foster-care supervisor’s testimony at the adjudication hearing established that TS remained in his fictive-kin placement and “was doing well there,” the Court of Appeals observed. “There was no allegation, or evidence presented at the adjudication hearing to show, that the fictive kin’s care and custody of TS was improper or unfit. Indeed, even the trial court noted that TS appeared to be ‘thriving’ in his fictive-kin placement. Further evidence presented at the adjudication hearing established that, even though respondent-father was unable to provide care for TS while incarcerated, he provided names of four relatives and one fictive kin whom he believed were willing and able to provide such care. At the hearing, the foster-care supervisor testified that all four of the relatives whom respondent-father provided were unwilling to provide care for TS and refused to engage in the assessment process. As to respondent-father’s suggested fictive-kin placement, the foster-care supervisor testified that the agency attempted extensively to get him to participate in the assessment process, but he was not responsive. Respondent-father did not present any evidence to refute this testimony. Therefore, it was reasonable for the trial court to find that the DHHS proved this allegation in the supplemental petition by a preponderance of the evidence.”
However, it was “unclear” why the respondent-father was required to offer potential relative and fictive-kin placements when TS was already placed with appropriate fictive kin, the Court of Appeals said. “Respondent-father did attempt to have TS moved from his current fictive-kin placement to respondent-father’s fictive-kin placement; however, that does not appear to have any bearing on the trial court’s exercise of jurisdiction over TS. Accordingly, because no evidence was presented that TS’s fictive-kin placement was improper or could no longer provide care to TS, we conclude that the trial court’s decision to exercise jurisdiction on this basis was clearly erroneous.”
Moreover, although the supplemental petition “did not include any allegations about TS’s mental well-being, the trial court’s order of adjudication reflects its decision to assume jurisdiction on the basis that TS was subject to a ‘substantial risk of harm to [his] mental well-being,’” the Court of Appeals said. “On appeal, the DHHS argues that evidence presented during the adjudication hearing indicated that respondent-father posed a risk of harm to TS’s mental well-being through his criminal acts that had the ability to affect his parenting capabilities.
Examining In re Ramsey, 229 Mich App 310 (1998), the Court of Appeals emphasized it has previously noted there is a “significant distinction between cases when a respondent-parent’s criminal acts were perpetrated against their child, and, therefore, relating to their ability to parent that child, and when a respondent-parent’s criminal acts are unrelated to their ability to parent their child.” On appeal, the DHHS claimed the testimony at the adjudication hearing established the respondent-father was “diagnosed with cannabis use disorder and alcohol use disorder, which can negatively affect respondent-father’s ability to parent TS.”
However, in In re Ramsey, “this Court specifically distinguished between a respondent-mother’s drug-related criminal acts and a respondent-parent’s criminal acts perpetrated against their child,” the Court of Appeals said. “Therefore, although respondent-father’s substance-use issues may have the ability to negatively impact his parenting abilities, those issues, coupled with his drug-related criminal charges, do not reflect the type of criminal acts that this Court contemplated in In re Ramsey, that support a finding of jurisdiction. Therefore, we conclude that the trial court’s decision to assume jurisdiction on this basis was clearly erroneous.”
“In sum, the only allegation in the supplemental petition pertinent to the trial court’s exercise of jurisdiction over TS concerned respondent-father’s failure to identify appropriate or willing relatives or fictive kin to provide care, custody or support to TS,” the Court of Appeals said. “However, it is unclear why respondent-father was required to provide an appropriate relative or fictive kin placement when TS was already situated in an appropriate fictive-kin placement. Therefore, the trial court’s exercise of jurisdiction over TS was clearly erroneous and reversal is warranted.”
Ineffective Assistance Of Counsel
The respondent-father also argued the foster-care supervisor’s testimony that the agency’s relative-engagement specialist told her that respondent-father’s suggested relatives for placement were unwilling to engage in the assessment process constituted hearsay.
“Respondent-father further asserts that, had his trial counsel objected to this testimony, the trial court would not have had sufficient evidence to determine that respondent-father failed to identify any appropriate or willing relatives or fictive kin to provide care, custody, or support to TS while he was incarcerated,” the Court of Appeals said. “We agree.”
The foster-care supervisor testified the respondent-father identified five people whom he believed were appropriate placements for TS, the Court of Appeals explained. “During direct examination, the foster-care supervisor was questioned about whether any of the named relatives were willing to take TS, to which she responded ‘no.’ When asked whether the relatives told this specifically to the foster-care supervisor, she stated that they did not tell her directly; rather, the agency’s ‘relative-engagement specialist engaged in those conversations.’ Respondent-father argues this testimony constituted hearsay. In contrast, the DHHS argues that this testimony was offered to show why the agency did not place TS with respondent-father’s recommended relatives, rather than to prove the truth of the matter asserted. We conclude that this testimony constituted inadmissible hearsay.”
According to the Court of Appeals, the statements of the relatives that they were unwilling to care for TS “were out-of-court statements offered during the adjudication hearing to prove the truth of the matter asserted. … It was, therefore, necessary for the DHHS to present evidence at the adjudication hearing to prove this allegation by a preponderance of the evidence. If the foster-care supervisor’s testimony was offered merely to explain that TS was not placed with certain relatives, then the DHHS would have failed to provide sufficient evidence to prove the allegation by a preponderance of the evidence. Therefore, this testimony must have been proved to offer the truth of the matter asserted – that the relatives whom respondent-father recommended were unwilling to provide care for TS. This testimony was, therefore, hearsay for which no exception or exemption applies. Accordingly, this testimony was inadmissible hearsay, and respondent-father’s trial counsel should have objected to its admission.”
The trial attorney’s “failure to object to this testimony constituted deficient performance because it ‘fell below an objective standard of reasonableness under prevailing professional norms,’” the Court of Appeals said. “Although there is a strong presumption that an attorney’s performance constituted sound trial strategy, the record does not indicate any possible sound trial strategy that trial counsel engaged in by failing to object to this testimony. The DHHS argues that this failure to object to hearsay constituted strategic trial strategy because it left open a window to challenge the trial court’s exercise of jurisdiction over TS. The DHHS contends that this conclusion is supported by the fact that trial counsel cross-examined the foster-care supervisor about the availability of respondent-father’s recommended relatives to take custody of TS. This does not, however, appear to make logical sense given the fact that, if the testimony was objected to and deemed inadmissible hearsay, then there would have been insufficient evidence to prove the allegations in the supplemental petition by a preponderance of the evidence. This, therefore, does not appear to constitute sound trial strategy.”
Furthermore, if the trial attorney objected to the foster-care supervisor’s testimony, “there is a reasonable probability that the result of the adjudication would have been different,” the Court of Appeals said. “The trial court exercised jurisdiction over TS on the basis that respondent-father did not identify any appropriate or willing relatives to provide for the care and support of TS. Without this testimony, the trial court would not have been presented with any evidence of the willingness and appropriateness of placement with the four relatives whom respondent-father provided to the agency. Therefore, respondent-father’s trial counsel’s performance was deficient and that deficient performance prejudiced respondent-father. Accordingly, trial counsel provided respondent-father with ineffective assistance of counsel.”
