COA Vacates Trial Court Order Terminating Father's Parental Rights; Remands Case Citing Failure To Consider Child's Placement With Fictive Kin
Docket No. 367565
Oceana County Circuit Court
Gadola, K.F. Kelly, Mariani
Melissa Kelleigh represented the Respondent-Father
Holding: The Trial Court’s best interest analysis in terminating Respondent-Father’s parental rights was “erroneously incomplete” due to the Trial Court’s failure to consider CJM’s placement with a “relative” as defined by MCL 712A.13a(1)(j) during the best interest determination. The Court of Appeals thus vacated the order terminating Respondent-Father’s parental rights, remanded for further proceedings, and retained jurisdiction.
Facts: The Department of Health and Human Services (“DHHS”) filed a petition to remove the minor child, CJM, from Respondent-Father’s care in December 2021. The petition alleged that CJM had been residing with a non-blood-related third party, Cassondra Pulsipher, since birth and Ms. Pulsipher lacked proper legal authority to care for CJM. CJM was behind on medical check-ups, vaccines, and had recently been taken in for emergency treatment after ingesting methamphetamine while in Respondent-Mother’s care. At the time the petition was filed, Respondent-Father was incarcerated. Although Ms. Pulsipher had been caring for CJM, DHHS could not formally recommend placement with her due to DHHS policies at the time.
The Trial Court granted DHHS’ request, placed CJM with Ms. Pulsipher, and later authorized DHHS’ petition in February 2022. Upon his release from prison, Respondent-Father pleaded to the allegations in the petition in May 2022, and the Trial Court ordered Respondent-Father to participate in services. Over the next five months, Respondent-Father had little to no participation or progress in services, including failing to attend supervised visitation with CJM beginning in July 2022. Respondent-Father was reincarcerated in August 2022 for new criminal charges and several parole violations. In October 2022, the Trial Court directed DHHS to file a supplemental petition to terminate Respondent-Father’s parental rights. The Trial Court entered the order terminating Respondent-Father’s parental rights in February 2023. Respondent-Father appealed, and only challenged the Trial Court’s determination that termination of Respondent-Father’s parental rights was in CJM’s best interests.
Key Appellate Rulings:
The statutory definition of “relative” pursuant to MCL 712A.13a(1)(j), as amended in October 2022, included a definition of “fictive kin” that applies to Ms. Pulsipher. Thus, the Trial Court’s failure to consider CJM’s placement with a “relative” at the time of the termination trial was reversible error.
The Court of Appeals noted that MCL 712A.13a(1)(j) had recently been amended to expand the definition of “relative” to include “fictive kin,” which the statute defined as ““individual who is at least 18 years of age…[n]ot related to a child within the fifth degree by blood, marriage, or adoption but who has a strong positive emotional tie or role in the child’s life or the child’s parent’s life if the child is an infant, as determined by the department.” The Court also recognized this definition had recently been applied to include the significant other of a respondent parent in In re Dixon (On Reconsideration), ___ Mich App ___; ___ NW2d ___ (2023) (docket No. 363388). The Court determined that there was no dispute Ms. Pulsipher regularly cared for CJM since birth, CJM considered Ms. Pulsipher to be his mother, and the Trial Court itself referred to Ms. Pulsipher as “fictive kin.” The Court thus held that Ms. Pulsipher was “fictive kin” and a “relative” such that the Trial Court was required to consider CJM’s placement with her prior to concluding that termination was in CJM’s best interest, as placement with a “relative” defined by MCL 712.13a(1)(j) weighs against termination.
The language of MCL 712A.13a(1)(j) does not limit the fictive kin’s positive emotional role to only non-infant children.
In response to arguments from the dissent, the Court of Appeals also held that MCL 712A.13a(1)(j) creates two alternative paths for “relative” status in relation to a child, like CJM, who is an “infant.” While the statute itself only uses the term “infant” in the second prong of the definition of “fictive kin,” the Court determined that the construction of the statute “does not purport to limit the first of these options only to non-infant children (instead making clear through its second option that the term “child” comprises infants), or to categorically foreclose consideration of the connection between an infant child and an individual in assessing that individual’s status as a “relative.”” Thus, the Court held that Ms. Pulsipher’s strong connection with CJM was sufficient to deem her a “relative” without having to consider Ms. Pulsipher’s role in Respondent-Father’s life.
Judge Kelly authored a dissenting opinion, holding that the Trial Court’s best interest determination was correct. Judge Kelly clarified that, while a court may not initiate termination proceedings when a child is placed with a relative, once termination proceedings have begun, placement with relatives is only one of several factors a court must consider when determining a child’s best interests. Judge Kelly reiterated the statutory language and found that Ms. Pulsipher could be considered CJM’s relative based on Ms. Pulsipher’s emotional ties to CJM or to CJM’s parents if CJM was an “infant.” As the term “infant” is not defined by the statute, Judge Kelly “would have little issue concluding here that CJM was an “infant” when he was placed with [Ms.] Pulsipher at birth.” Thus, Judge Kelly determined that the only way Ms. Pulsipher could be considered CJM’s “relative” under the statute would be to determine if Ms. Pulsipher “has a strong positive emotional tie or role’ in the respondent parents’ lives. Judge Kelly found the record to be silent on this issue and thus found no support for Respondent-Father’s argument that Ms. Pulsipher met the definition of “relative” under MCL 712A.13a(1)(j). After a review of Respondent-Father’s additional arguments regarding the best interests of CJM, Judge Kelly concluded that the Trial Court did not err and would have affirmed the Trial Court’s order.
