COA Reversed Termination of Mom’s Parental Rights After Trial Court Took Jurisdiction Over Minor Child
The Michigan Court of Appeals affirmed the trial court’s order taking jurisdiction over the child and vacated the trial court’s termination order in In re B M Baham Minor (Docket No. 346893). The Court stated that the trial court erred when it found by clear and convincing evidence that termination of parental rights to the minor child was proper. Based on the totality of the evidence, the Court was “left with a definite and firm conviction” that the trial court had erred.
The Court of Appeals held that the respondent could not establish plain error affecting her substantial rights with regard to the trial court’s decision to take jurisdiction over the minor child. The Court affirmed the trial court’s termination order because the trial court erred when it found by clear and convincing evidence that termination of parental rights to the minor child was proper.
Background
On January 3, 2018, the respondent was arrested for armed robbery of her father when she and two other men entered her father’s home and robbed and attack respondent’s father. Respondent was unaware that, at the time of the incident, her child was present in the home and was unable to be cared for after the attack on her father. Respondent pled guilty and was sentenced to 5 to 20 years in prison.
After respondent was incarcerated, she learned that she was pregnant with the minor-child involved in this case. It was her intention at the time that until she was released from prison the child would reside with respondent’s mother, her brother and sister-in-law, or with a family friend.
However, the Department of Health and Human Services filed a petition to terminate respondent’s parental rights under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(j), despite her work with a caseworker and a Parent Agency Treatment Plan. Initially, DHHS sought only temporary custody over the child when respondent was incarcerated and had “not provided an appropriate plan for [the child’s care] and supervision.” Eventually the child resided with respondent’s brother and the trial court, under MCL 712A.2(b)(1), assumed jurisdiction of the child. The trial court also found, under these statutory provisions, that there was evidence to terminate respondent’s parental rights and that such termination was in the best interest of the child.
“The trial court found that respondent was complying with her services and was doing well in prison, which further negates an inference that she somehow would be non-compliant with services if release.”
Jurisdiction Over the Child
On appeal, the respondent first argued that the facts were not sufficient to allow the trial court to assume jurisdiction over the child under MCL 712A.2(b)(1). In order to prevail, the respondent needed to show that there was a plain error that affected her substantial rights. The statute states that a court may assume jurisdiction over a minor child where a parent “when able to do so, neglects or refuses to provide proper or necessary support, education, medica, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship”. The trial court in this case concluded that the child was without proper custody or guardianship. Although it was the intention of the respondent to place the child in proper care, the respondent testified that she was incarcerated, thereby restricting her ability to care for the child and that she did not have an appropriate plan of care for the child at that time.
Additionally, although the respondent argues that the child was residing with a fit family member, namely her brother, the child was in the hospital at the time the petition was filed, and the trial court must “examine the child’s situation at the time the petition was filed.” Because there was no proper guardianship established at the time the petition was filed and the respondent only had ideas for care for the child, the Court held that the respondent could not establish plain error with respect to assuming jurisdiction over the child based on these facts.
Assuming that the respondent could prove plain error, the Court of Appeals held that the respondent did not prove that it would have affected her substantial rights. Because the respondent entered a plea of admission to the allegation of improper supervision, there was no negative effect on the respondent substantial rights.
Termination of Parental Rights
The second argument advanced by the respondent was that there were no statutory grounds for the trial court to terminate her parental rights to the child.
The Court of Appeals stated that the trial court focused entirely on the best interests of the child and made no factual findings that the elements of MCL 712A.19b(3)(h) and (j) were met. Under the statute, termination is proper if the court finds by clear and convincing evidence that:
the parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and (2) the parent has not provided for the child’s proper care and custody, and (3) there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.
To the first element, the Court of Appeals held that although the respondent would be in prison for longer than two years, the child would not necessarily have been deprived of a normal home during that period if the child were placed with a family member. Here, the child was residing with the respondent’s brother and therefore the respondent was providing the proper care through that placement.
Looking at the third element, the Court stated that “the third conditions is ‘forward-looking’ and ‘asks whether a parent will be able to provide proper care and custody within a reasonable time’ . . . in this case, the caseworker opined that it would take respondent 8 to 12 months after being released from prison to be able to provide [the child] with proper care and custody, noting that respondent would have to maintain stable housing and employment, have child support set up, participate in substance-abuse classes[] . . . and participate in parenting classes.” However, the Court of Appeals held that this evidence was largely contradicted by the evidence showing that the respondent attended parenting classes while in prison; she was not behaving inappropriately during her visits with her child; she was ready to be employed upon her release; and she was in the process of receiving her GED. Thus, the timeline that the caseworker presented of 8 to 12 months was inaccurate because of the work she was doing while in prison and the support she was receiving from her parents at that time and the housing they were offering her.
Overall, because of the foregoing facts, the Court held that the trial court made a mistake by terminating the respondent’s parental rights.
Lastly, the Court of Appeals also held that termination of parental rights was not proper under section MCL 712A.19b(3)(j). The standard for termination under this subsection is whether the court finds by clear and convincing evidence that there is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to that parent. However, noting the aforementioned facts, it was unreasonable for the trial court to hold that the child would be harmed by the reunification of the child with the respondent.
