COA Makes it Easier for Trial Courts to Terminate Parental Rights

The COA held in a published opinion that the trial court does not have to find that termination is in the best interests of the child by clear and convincing evidence but only by a preponderance of the evidence. In re Moss Minors, issued May 9, 2013 (Docket 311610). The Court of Appeals based this decision on the change of the language from the earlier statute, which said the court could terminate “UNLESS the court finds that termination of parental rights to the child is clearly not in the child’s best interests.” The current version of the statute reads that if the court finds the statutory grounds to terminate and that termination is in child’s best interests, then it can terminate. Even though the Legislature eliminated the difficult burden from the previous statute that required the parent to demonstrate that it is not in the child's best interests to terminate, and made it easier for parents, by requiring the prosecutor to show that it is the in the child's best interest to terminate, the Court of Appeals' interpretation of the statutory burdens of proof make it easier for the trial court to terminate because the prosecutor only has to show by a preponderance of the evidence that termination is in the child's best interests. Because termination has constitutional implications to a parents right to the care custody and control of their children, I would think that the higher clear and convincing standard would be required (see Judge Gleicher's concurring opinion in Hollis v Miller).

And accordingly, the COA must read the statute in a way that is constitutionally permissible. Judge Wilder wrote a concurring opinion, but his opinion contains the same problem as the majority - it accepts the preponderance of the evidence standard for the best interests analysis. His opinion goes further and states that, once the statutory grounds for termination have been established by clear and convincing evidence, that the parent no longer has a liberty interest in their child. So although MCL 712A.19b(5) requires both statutory grounds and best interests before the trial court can terminate, apparently, according to the concurrence, the liberty interest ends before the trial court even considers what is in the child's best interests.