COA Ruled Mother’s Drug Use During Pregnancy Doesn't Qualify As An Aggravated Circumstance

Key Holding

The Court of Appeals in a published opinion issued February 24, 2022, vacated the Trial Court’s order terminating mother’s parental rights in In re Simonetta, Minor (Docket #357909) because mother’s drug use during pregnancy does not qualify as an aggravated circumstance allowing for termination without first providing reasonable efforts because a fetus is not a “child” and there was no evidence providing for a finding of “severe physical abuse” to warrant termination without reasonable efforts.  

Facts

Six days after MS was born, DHHS filed a petition to terminate mother’s parental rights at initial disposition on the ground that aggravated circumstances were present. Respondent had also voluntarily terminated her parental rights to her prior children. After this child was born, she tested positive for opiates and THC, and mother further admitted to using marijuana and Norco prior to MS’s birth. DHHS alleged that taking those substances while pregnant amounted to “severe physical abuse” sufficient to terminate mother’s parental rights without offering reasonable efforts toward reunification. During the adjudication trial, a pediatrician testified who verified MS’s prebirth exposure to opioids and THC, but also testified that MS did not require medication or medical intervention of any kind because her withdrawal scores were relatively low. Nevertheless, the pediatrician testified that narcotic exposure in utero could lead to developmental delays, although no evidence was presented in regard to MS. 

Although no evidence was presented that MS had been “severely abused,” the lower court terminated parental rights without making a specific finding that aggravated circumstances existed. On initial appeal the Court of Appeals upheld the lower court’s determination on the ground that “respondent’s consumption of marijuana and opiates while pregnant . . . resulted in a life-threatening injury.” Mother appealed to the Michigan Supreme Court which vacated the Court of Appeal’s decision that the evidence satisfied aggravated circumstances to terminate without offering services and remanded back to the lower court to either order DHHS to provide services to provide factual findings that articulate by clear and convincing evidence that aggravated circumstances were present.  

On remand, the lower court again found aggravated circumstances because mother “abused [MS] by ingesting multiple opiates and THC during her pregnancy” and that the withdrawal and potential complications constituted severe physical abuse caused by the mother’s drug use. Mother once again appealed to the Court of Appeals, which rendered its decision here. 

Key Appellate Rulings

1. The circuit court erred in finding child abuse occurred pursuant to MCL 722.638(1)(a)(iii) because a fetus is not considered a “child” as the term is defined under the Probate Code. 

Under both the Child Protection Law and the Probate Code, a “child” is defined as “an individual less than 18 years of age.” MCL 722.622(f); MCL 710.22(j). Relying on People v Jones, where the Court of Appeals found that criminal child abuse does not extend to fetuses because the definition of a “child” expressly omits the term “fetus.” Jones noted that the Legislature has criminalized conduct that harms fetuses, but the Legislature consistently declined to expand the definition of “child” to include a fetus. Because the term “fetus” has been used in other laws, the Court of Appeals determined that the omission of a fetus in the Probate Court’s definition of a “child” was therefore intentional. The Court of Appeals then held that the express exclusion of a fetus from the definition of a “child” meant that drug use during pregnancy does not mean that a mother will abuse her child after birth, meaning that aggravated circumstances do not exist in the present case to support termination of parental rights without providing services.  

2. The circuit court erred in finding that MS was “severely abused” by clear and convincing evidence because no evidence was presented that Respondent’s opioid use during pregnancy harmed MS after she was born.  

After MS was born, she was placed in the special care nursery after testing positive for opioids, but not because she exhibited signs of neonatal abstinence syndrome. If any symptoms were present, DHHS fails to place those symptoms into evidence. The Court of Appeals found that a review of the record supports the argument that DHHS denied services to Respondent based on her prior voluntary termination of parental rights to her twin children and as a way to punish Respondent for her drug use. The overall goal of CPS and the Legislature is to strengthen families by requiring reasonable efforts to reunify families. If the Court were to allow for the termination of parental rights based on maternal drug use, pregnant women would therefore be discouraged from seeking prenatal care, which would go against the goal of reunifying families.  

Ronayne Krause Concurrence 

Judge Krause concurred with the majority’s conclusion and reason that a fetus is not a child under the Probate Code. As the majority found that it was impossible to commit abuse of a fetus under MCL 722.638(1) and was therefore impossible to subject a fetus to aggravated circumstances, Judge Krause went on to state that she “would not consider or express any opinion whether the evidence would otherwise support a finding of ‘severe physical abuse’.”