Child Died During Parental Rights Appeal: “Collateral Legal Consequences” Prevent Mootness

In a case where the respondent-mother’s parental rights had been terminated, the Michigan Court of Appeals held that her appeal was not moot, even though the child died while the appeal was pending. The reason? Because the respondent-mother faced “collateral legal consequences” as a result of the parental rights termination.

The published decision is In re R. Smith, Minor (Docket No. 339478). The Court of Appeals released the opinion on April 19, 2018, but issued an Order the next day vacating its decision. A new opinion was released on April 24, 2018.

The case involved RS, a child who had significant medical problems, including cerebral palsy and fetal-hydantoin syndrome. The Michigan Department of Health and Human Services (DHHS) intervened and petitioned the trial court to take jurisdiction over RS, alleging the respondent was not providing him adequate medical care, among other things. The petition was granted and RS became a ward of the court in October 2015.

DHHS began reunification efforts in 2016 by establishing a parent-agency treatment plan and conducting review hearings. However, the respondent did not fully comply. For example, she did not obtain gainful employment and often did not participate in substance abuse counseling, drug testing and other therapy sessions. As a result, DHHS asked the trial court to terminate the respondent’s parental rights.

After a seven-day hearing in 2017, the trial court ruled it was in RS’s best interests to terminate the respondent’s parental rights. The respondent appealed and, while the matter was pending, RS died due to complications from his cerebral palsy.

Collateral Legal Consequences

In its analysis, the Court of Appeals first addressed whether the respondent’s appeal was moot because RS had passed away. The Court explained that, to warrant judicial review, parties must present a “real controversy” and not a hypothetical one (also known as the “real-case-or-controversy” requirement). As a result, “before we can reach the merits of this appeal, we must first consider whether it has become moot by the child’s death,” the Court stated.

A case generally becomes moot when an event happens that makes it impossible to grant relief, the Court observed. However, a case is not moot where “a court’s adverse judgment may have collateral legal consequences” for at least one of the parties. “When no such collateral legal consequences exist, and there is no possible relief that a court could provide, the case is moot and should ordinarily be dismissed without reaching the underlying merits.”

Here, both parties asserted the child’s death did not render the case moot, even though the respondent could not assume care of RS in the event the trial court’s decision was reversed.

“[W]e agree that this case is not moot because the trial court’s termination of respondent’s parental rights may have collateral legal consequences for respondent,” the Court stated.

Citing MCL 712A,19b(3)(i), the Court pointed out the termination of rights could provide a statutory ground to also terminate the respondent’s parental rights to another child. In addition, “a prior termination is a relevant matter for the trial court to consider when determining whether petitioner should be required to provide reunification services in the event that another child is removed from respondent’s care,” the Court said.

Further, termination of rights may affect the respondent’s ability to direct RS’s property post-mortem or wrap up legal or medical affairs concerning the child, the Court noted, and could also affect the respondent’s ability to obtain future employment. “Therefore, we conclude that the case is not moot because collateral legal consequences still exist, even given the unfortunate passing of RS.”

Reasonable Reunification Efforts

Next, the Court of Appeals examined the merits of the case. The respondent had challenged the adequacy of DHHS’s efforts when it came to transportation, job services, housing and medical training.

“After reviewing the record, we are satisfied that petitioner’s reunification efforts were reasonable,” the Court wrote.

Regarding housing, the Court observed that the caseworker offered to help the respondent find suitable housing, but she refused. “Similarly, the caseworker offered to help respondent obtain employment but respondent did not fully avail herself of those services. We agree with the trial court that respondent never intended to work. Respondent provided myriad reasons for why she did not seek employment, and stated that her husband could provide financially for her and the minor child.”

As for transportation, the Court said the respondent acknowledged that she was provided with assistance, including gas cards and rides. “The caseworker also testified that respondent was provided with transportation assistance. Indeed, respondent acknowledged that she had not asked petitioner for further assistance with transportation, and that, in any event, she could use a bus stop near her home. Accordingly, the record makes clear that petitioner provided the necessary transportation assistance respondent requested.”

With respect to medical training, the respondent alleged she did not receive the proper medical training to care for RS. “Although respondent claimed that no one explained any special cleaning or care needed in connection with the use of the child’s stomach tube, she testified at length about the mechanisms for feeding the child through the tube. Moreover, respondent missed 30 of RS’s 62 medical appointments despite being informed of them and, during the appointments she did attend, respondent frequently argued with care providers. Accordingly, the record makes clear that, if respondent did not receive some training, her own conduct was the cause.”

The Court further rejected the respondent’s assertion that DHHS had a duty to tailor its reunification efforts to RS’s specific needs, given his severe medical conditions. The respondent argued that she was entitled to “more intensive services” and that DHHS’s “cookie cutter approach” was insufficient. “In support of this argument, respondent cites only caselaw establishing a duty by petitioner to tailor services to accommodate a disabled parent under the Americans with Disabilities Act, 42 USC 12101 et seq., rather than a disabled child. Respondent does not identify a disability of her own that required accommodation and a ‘party may not leave it to this Court to search for authority to sustain or reject its position.’”

The Court continued by noting that a “significant component” of the treatment plan required the respondent to attend RS’s medical appointments, so she could be aware of his needs and learn how to provide the specialized care he required. “Respondent failed to attend approximately half of the child’s appointments and frequently argued with care providers when she did attend appointments,” the Court pointed out.

The respondent “failed to avail herself of many of the services that were offered,” the Court said. “Therefore, the record makes clear that … respondent did not uphold her commensurate responsibility to engage in and benefit from those services. … Accordingly, respondent’s claim that petitioner failed to provide reunification services is without merit.”

Statutory Grounds For Termination

Lastly, the Court of Appeals held the trial court properly found that DHHS established the statutory grounds for termination by clear and convincing evidence, pursuant to MCL 712A.19B(3)(c)(i), as well as subsections (g) and (j).

As for subsection (c)(i), the Court said the evidence showed the respondent made no progress toward demonstrating her ability to care for RS’s medical needs. “Respondent missed 30 of the child’s 62 scheduled doctor appointments, surgeries, or other procedures and respondent continued to be confrontational with medical personnel and their treatment recommendations,” the Court said. “Accordingly, respondent was ill-equipped to address the child’s medical needs and, given her inability to participate in the child’s care, was unlikely to improve her care-taking abilities in the future.”

Regarding subsections (g) and (j), the Court said that, given the respondent’s lack of participation in RS’s medical needs while he was in the care of DHHS, and her “minimal progress” in addressing other requirements of the treatment plan, there was “no reasonable expectation” that she would be able to care for RS within a reasonable time. “Given the child’s fragile medical condition, there existed a reasonable likelihood that the child would have suffered serious physical harm if returned to respondent’s home,” the Court said.

Based on the foregoing, the Court affirmed the termination of the respondent’s parental rights.