Dissent: Terminating Parental Rights Was ‘Punitive’ And Not In ‘Anyone’s Best Interests’

The trial court correctly held that the minor children in this case would be harmed if returned to their mother’s care and, as a result, properly terminated her parental rights, the Michigan Court of Appeals has ruled in a 2-1 decision.

The respondent-mother in In re Bates, Minors (Docket No. 361566) appealed the trial court’s findings that there was clear and convincing evidence to terminate her parental rights under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and MCL 712A.19b(3)(c)(j) (reasonable likelihood of harm if returned to parent). She claimed the trial court wrongly held that termination was in her children’s best interests.

A Court of Appeals majority affirmed the termination of the respondent-mother’s parental rights. Judge Kirsten Frank Kelly and Judge Anica Letica joined the majority opinion.

“Respondent’s struggles with substance abuse created a life-threatening emergency to AAB, and respondent was unable to demonstrate to DHHS that she was prepared to safely care for her children going forward,” the majority said. “Accordingly, the trial court did not clearly err when it concluded that there was clear and convincing evidence that there was a reasonable likelihood the children would be harmed if returned to respondent’s care.”

However, Judge Elizabeth Gleicher disagreed. In her dissent, Gleicher emphasized the respondent-mother “had taken responsibility for her previous mistakes, blamed only herself, and had successfully engaged in treatment of her alcoholism and substance abuse.”

The trial court, in a 42-page opinion, “exquisitely detail[ed] [the] mother’s past failures and misdeeds” and “ignore[d] her successes and the powerful evidence of her present fitness,” Gleicher said. “In my view, the termination of mother’s parental rights based on her past conduct was mostly punitive rather than advancing anyone’s best interests. I fear that the destruction of the children’s relationship with their mother will punish them, as well.”

Background

The respondent-mother has two minor children, AAB and AMB. In December 2019, the Department of Health and Human Services (DHHS) filed a petition asking the Grand Traverse County Circuit Court to take jurisdiction over the children, remove them from the respondent’s care, place them with their father and terminate the respondent’s parental rights. An amended petition was filed in January 2020 because of the respondent’s substance abuse and mental health issues, prior Child Protective Services (CPS) cases involving her abuse of alcohol, and her alleged inability to care for her children’s medical needs.

In the year or so prior to the DHHS filing its petition, AAB had been diagnosed with Type 1 diabetes. The DHHS petition alleged the respondent could not care for AAB because, at one point, she failed to give him insulin and monitor his blood sugar levels for several days. As a result, AAB went into diabetic ketoacidosis and was comatose for several days in the hospital. Because of her failure to provide AAB with proper medical assistance, the respondent pleaded guilty to one count of third-degree child abuse and was sentenced to five months in jail and 18 months’ probation. As a result, she was incarcerated from January 2021 until April 2021. After the respondent was released from jail, she violated her probation in July 2021 for consuming alcohol. She was incarcerated again from July 2021 until October 2021. The respondent was also arrested twice for shoplifting in July 2021 and was reportedly intoxicated during both incidents.

At the conclusion of a termination hearing in March and April 2022, the trial court found there was clear and convincing evidence to terminate the respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (j).

The respondent appealed.

Split Opinion

According to the Court of Appeals majority, the trial court correctly ruled there was a reasonably likelihood the children would be harmed if returned to the respondent’s care.

“Respondent struggled with mental health and substance abuse issues which had a negative effect on the children, culminating with AAB being hospitalized and near death as a result of respondent’s neglect,” the majority said. “Respondent admitted that she did not educate herself about diabetes until she was diagnosed with the disease, which occurred after AAB’s diagnosis. During the pendency of this case, respondent was unable to maintain sobriety and was arrested twice for shoplifting while intoxicated. … Indeed, the children themselves stated they did not feel safe in respondent’s care and wanted to have another adult check on them when with respondent. … Affirmed.”

Disagreeing with the majority’s decision, Gleicher emphasized in her six-page dissent that a primary goal of the Juvenile Code is to “preserve and strengthen” family relationships. “This principle is reflected in the rules governing cases in which a parent’s fundamental rights to the care and custody of her child are at stake,” she wrote. “Even after a child has been removed due to parental neglect, reasonable efforts must be made to reunite parent and child. … Underlying the rules is a conviction that even parents who have been deeply neglectful and harmed their children may be able to rectify the conditions leading to state intervention, and must be given a reasonable opportunity to do so.”

According to Gleicher, “A parent’s present ability to have a safe relationship with her children should, in most cases, outweigh past misdeeds. … Here, respondent-mother’s past doomed her efforts to maintain her parental rights. Despite mother’s success in constructively addressing her alcoholism and substance abuse, her willingness to take responsibility for injuring her child, and even though her children were safely placed with their father, the court terminated her parental rights.”

Next, Gleicher reviewed the “series of tragic errors” that the respondent had made. “Mother’s negligent care for her son, her substance abuse, and her mental health issues formed the basis for the DHHS’s petition to terminate her parental rights. The DHHS proved that these problems existed before the court took jurisdiction and that mother was not a fit parent when the petition was filed. But after her second release from jail, mother actively engaged in rehabilitation efforts including in-patient substance abuse treatment. The evidence supported that she made remarkable progress. No evidence suggested that she was unfit at the time of the termination hearing. To the contrary, the evidence proved the opposite: despite the DHHS’s limited efforts at reunification, by the time of the termination hearing mother had turned her life around. Her efforts counted for naught, however, because the trial court focused almost exclusively on her past misdeeds.”

Gleicher explained the applicable statutes say that, with “reasonable efforts,” parents who make mistakes can redeem their relationship with their children. “Our law offers a parent that chance because of the precious and unique relationship at stake, and the life-altering consequences for both children and parents of destroying it,” she noted. “Here, these considerations should have led to two findings. First, the court should have found that petitioner failed to prove by clear and convincing evidence mother’s present unfitness. Second, because the two children were safely and securely placed in the custody of their father and mother’s visits with the children were uniformly positive, termination was inappropriate on best interest grounds.

Moreover, the DHHS petitions “did not identify MCL 712A.19b(3)(c)(i) as a ground for termination, and the grounds for termination that were included in the petition contain different elements than this subsection,” Gleicher observed. “Aside from the due process problem this omission raises, I disagree that clear and convincing evidence supported the termination of mother’s rights under either MCL 712A.19b(3)(c)(i) or (j). … It is unclear in the record whether the DHHS made any ‘reasonable’ efforts to reunify mother and her children. Indeed, the DHHS’s ‘efforts’ are hard to discern; the record instead reflects that the DHHS aimed to punish mother for her son’s diabetic crisis and her alcoholism, rather than helping her. Despite the DHHS’s failure to engage in mother’s rehabilitation, mother committed to sobriety and took responsibility for her previous misconduct.”

Gleicher continued by calling out the trial court’s findings as “factually and legally” erroneous. “Factually, no evidence presented at the hearing supported that mother was presently unfit or a danger to her children, or that she had a ‘continuing propensity to diminish her role’ in AAB’s diabetic ketoacidosis,” she said. “To the contrary, the evidence overwhelmingly supported that mother had taken responsibility for her previous mistakes, blamed only herself, and had successfully engaged in treatment of her alcoholism and substance abuse. Legally, the trial court erred by exalting mother’s past mistakes while ignoring her gains, presuming present unfitness despite the lack of evidence of it, and by failing to consider that the children were safely placed with their father.”

Gleicher also took issue with the trial court’s decision to not only place the children with their father, but also terminate the respondent’s parental rights because it was in the children’s best interests. “I am at a loss to understand why it is in the children’s best interests to terminate their relationship with their mother,” she wrote. “The facts are no different than those of routine custody matters in which one parent may not be in a present position to provide custody in his or her home. In such cases, family courts commonly rule that one parent will maintain sole or primary custody, while the other is permitted to visit under certain conditions. Such orders fulfil the goal of the Juvenile Code: they preserve family relationships. In custody cases, a parent’s rehabilitation may provide a change of circumstances allowing for increased custodial rights. Similarly, a parent’s decline may result in the elimination of parenting time. Unlike the termination of parental rights, which forever severs a child’s relationship with a parent and the parent’s family, less onerous and adversarial proceedings offer both parent and child the possibility of a positive relationship and the opportunity to repair the damage a parent has caused.”

Gleicher concluded by saying, “These children are not abused or neglected. They are not at risk of being abused or neglected. The permanent termination of their relationship with their mother punishes them as well as mother and conflicts with their short-term and long-term best interests. I would reverse.”