Dad’s Parental Rights Wrongly Terminated Based Solely On His Incarceration

A father’s parental rights were erroneously terminated under MCL 712A.19b(3) because his incarceration was the condition that led to the initial adjudication - and that condition alone is insufficient to terminate his rights, the Michigan Court of Appeals has ruled.

The respondent-father in In re W.W. Elkins, Minor (Docket No. 357925) is incarcerated. The Branch County Circuit Court terminated his parental rights to his minor child, WE, pursuant to MCL 712A.19b(3)(c)(i). That statute authorizes a trial court to terminate parental rights if it finds by clear and convincing evidence that the conditions leading to the adjudication continue to exist and there is “no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age.”

The respondent appealed the trial court’s decision. He argued that under the Michigan Supreme Court’s decision in In re Mason, 486 Mich 142 (2010), parental rights cannot be terminated solely because the parent is incarcerated.

The Court of Appeals agreed. The respondent’s incarceration “was the condition that led to the initial adjudication, but, under In re Mason, that condition alone is not sufficient to terminate his parental rights,” the Court of Appeals said. “Respondent’s failure to provide for WE was not the condition that led to the adjudication and, therefore, that factor cannot be used to fulfill (c)(i)’s requirements. Accordingly, the trial court erred by terminating respondent’s parental rights under MCL 712A.19b(3)(c)(i).

Judges Brock A. Swartzle and James Robert Redford joined the majority opinion. Judge Kirsten Frank Kelly concurred in part and dissented in part.

Background

The petitioner took custody of WE because WE’s mother was homeless and could not provide for WE’s basic needs. The respondent was subsequently determined to be WE’s biological father through DNA testing. The respondent did not know that he was WE’s father until the DNA test and, at that time, he was incarcerated. The respondent has never met WE. In addition, the respondent did not help WE’s caregivers, who have cared for WE for most of his life, or provide for WE’s well-being.

The petitioner later filed an amended petition, alleging the respondent was incarcerated for breaking and entering a vehicle and fourth-degree criminal sexual conduct. Due to the COVID-19 pandemic, the respondent was unable to participate in services throughout the case. Despite this fact, the petitioner filed a motion to terminate the respondent’s parental rights. The petition identified three statutory grounds to for termination under MCL 712A.19b(3).

In July 2021, the Branch County Circuit Court terminated the respondent’s parental rights under all three statutory grounds, finding that termination was appropriate given the respondent’s incarceration, his lack of involvement in WE’s life and WE’s bond with his current caregivers.

The respondent appealed.

Insufficient Findings

On appeal, the Court Appeals separately addressed all three statutory grounds on which the trial court relied to terminate the respondent’s parental rights.

First, the Court of Appeals examined MCL 712A.19b(3)(c)(i), which says a trial court can terminate parental rights if it finds by clear and convincing evidence that:

“(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:

(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age. …”

The trial court had terminated the respondent’s parental rights under (c)(i) because of the respondent’s incarceration, the Court of Appeals observed. “Petitioner agrees with respondent that the trial court improperly based its (c)(i) decision on respondent’s incarceration. Under In re Mason, ‘[t]he mere present inability to personally care for one’s children as a result of incarceration does not constitute grounds for termination.’ A respondent’s incarceration ‘exceeding two years’ is explicitly a factor when terminating parental rights under MCL 712A.19b(3)(h), but neither the petitioner nor the trial court relied on that provision, and respondent’s earliest release date is October 2022.”

Accordingly, the respondent’s incarceration was the condition that led to the initial adjudication, the Court of Appeals said. However, under In re Mason, “that condition alone is not sufficient to terminate his parental rights. … Respondent’s failure to provide for WE was not the condition that led to the adjudication and, therefore, that factor cannot be used to fulfill (c)(i)’s requirements. Accordingly, the trial court erred by terminating respondent’s parental rights under MCL 712A.19b(3)(c)(i).”

The Court of Appeals continued by examining MCL 712A.19b(3)(g), which authorizes the trial court to terminate parental rights if “[t]he parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child and 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.” The trial court found these requirements were met because the respondent: 1) is in prison, 2) was not in a financial position to provide for WE and 3) offered no testimony that he “made arrangements for others to provide” for WE.

“Consequently, the trial court failed to make the necessary determination that respondent was financially able to care for WE,” the Court of Appeals reasoned. “To the extent that requirement could be met through financial assistance from respondent’s family, their potential assistance also cannot sustain this statutory ground. The trial court noted that respondent had not asked his family members to help him provide for WE. But there was also no evidence that respondent’s family members had the financial ability to do so. Thus, although respondent has not provided for WE’s care in any way up to this point, there was no evidence establishing that respondent had the financial ability to care for WE. Indeed, the trial court actually found that respondent lacked the financial ability to care for WE. Thus, the trial court erred by finding statutory grounds to terminate respondent’s parental rights under MCL 712A.19b(3)(g) because it failed to make the necessary factual finding that respondent had the financial ability to care for WE.”

Lastly, the Court of Appeals reviewed MCL 712A.19b(3)(j), which authorizes the trial court to terminate parental rights if “[t]here 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 the home of the parent.” The respondent argued the trial court erred in this regard because it terminated his parental rights based on the “emotional harm” that would occur if WE was taken from his current caregivers, with whom he has lived his entire life.

“Subsection (j) requires the trial court to find that the child will be harmed ‘based on the conduct or capacity of the child’s parent,’” the Court of Appeals explained. “Although emotional harm is covered under subsection (j), the harm must result from some conduct or capacity of the parent, not from the loss of a bond with another person (though this latter circumstance might well be relevant to the best-interests analysis). Thus, respondent and petitioner are correct that emotional harm caused by the child being removed from caregivers does not provide sufficient grounds here to terminate respondent’s parental rights under subsection (j).”

Although concerns existed about placing WE in the respondent’s care given that he has never met WE and is incarcerated, “the trial court failed to make any findings that there is a reasonable likelihood that WE would be harmed,” the Court of Appeals said. “The trial court similarly failed to address respondent’s conduct or capacity to parent. The trial court should have considered these factors on the record so as to facilitate appellate review. Thus, the trial court clearly erred by terminating respondent’s parental rights under MCL 712A.19b(3)(j) on this record.”

Based on the foregoing, the Court of Appeals vacated the trial court’s order terminating the respondent’s parental rights and remanded for further proceedings. “We express no opinion on whether respondent’s parental rights should ultimately be terminated, either on the current record or an expanded record. Rather, we limit our review solely to the reasons given by the trial court when making its termination decision, which were insufficient. In the interest of expediency and efficiency, we retain jurisdiction.”

Dissenting Opinion

“I respectfully dissent from the majority’s decision to vacate the trial court’s order terminating respondent’s parental rights to WE,” Judge Kelly said.

“Because respondent was convicted of fourth-degree criminal sexual conduct and would have been incarcerated for more than two years at the time his rights were terminated, respondent’s parental rights were properly terminated under MCL 712A.19b(3)(h) and MCL 712A.19b(3)(m)(i),” she wrote. “The trial court’s misapplication of MCL 712A.19b(3)(c)(i) was, therefore, harmless.”

Further, “the trial court’s finding that WE would suffer emotional harm if taken from his current caregiver demonstrated by a preponderance of the evidence that termination of respondent’s parental rights is in the best interest of WE,” Judge Kelly said. “I would, therefore, affirm the trial court’s order terminating respondent’s rights to WE. I do concur, however, with the majority’s decision to retain jurisdiction over the case after remand.”