The Michigan Supreme Court recently refused to hear the appeal in In re Maes (Docket No. 152973). The denial of leave in Maes means that significant flaws in appellate case precedent have now been left intact, impacting hundreds of parental rights proceedings.

The application for leave in Maes addressed two issues of increasing concern:

• the fact that the Court of Appeals continues to misapply In re HRC, 286 Mich App 444 (2009), regarding the services offered when termination of rights is the goal;

and

• the fact that the Court of Appeals, in In re Moss, 301 Mich App 76 (2013), erroneously interpreted the burden of proof in MCL 712A.19b(5) as being preponderance of the evidence, rather than clear and convincing.

Maes Ruling

 In Maes, the child (KM) was placed in foster care and reasonable steps toward reunification with the father-respondent were ordered. The Michigan Department of Health & Human Services (MDHHS) presented a reunification plan and, after respondent successfully met the conditions, KM was returned to respondent’s home, with supervision.

A petition for KM’s emergency removal due to a domestic incident was later granted. KM was again placed in foster care and MDHHS sought termination of respondent’s parental rights. MDHHS also updated its service plan. Although it identified new goals for the respondent, it did not suggest treatment to help meet the goals. For example, MDHHS said that respondent would benefit from domestic violence and parenting skills programs, but it did not suggest anything in particular to assist him.

The respondent’s parental rights were ultimately terminated.

In its ruling affirming the termination (Docket No. 325919), the Court of Appeals cited HRC, noting that MDHHS is not required to provide reunification services when termination is the goal. “Therefore, respondent was not entitled to be offered services by petitioner after the second removal,” the court said.

The Court of Appeals also relied on Moss, finding that whether the termination of parental rights is in the best interests of the child “must be proven by a preponderance of the evidence.”

Leave Denied: The Fallout

The Supreme Court denied leave in Maes on January 29, 2016, without explanation. This means the erroneous application of HRC and Moss’s inaccurate interpretation of MCL 712A.19b(5) will continue.

By misapplying HRC, the Court of Appeals is letting trial courts relieve MDHHS of its statutory obligation to make reasonable efforts to reunify, simply by announcing that “termination is the goal,” even when it is a non-aggravated circumstances case, such as Maes. In fact, the appeals court has cited this “termination is the goal” proposition 59 times as grounds for cessation or avoidance of MDHHS services. However, at least 16 of those cases did not involve aggravated circumstances. In non-aggravated cases, invoking HRC cannot alleviate MDHHS’s statutory obligation to make reasonable efforts toward reunification.

The fundamental rights of parents will continue to be offended for as long as HRC is misapplied. Parents are being deprived of the right to direct the care, custody and control of their children without being afforded reasonable efforts toward reunification.

In Moss, the Court of Appeals said that preponderance of the evidence — not clear and convincing — is required under MCL 712A.19b(5). That statute says: “If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.”

Moss’s interpretation of MCL 712A.19b(5) not only contradicts the statutory language and legislative intent, but also violates due process. The Moss panel concluded that, when the Legislature removed the word “clearly” from the statute a few years ago, the intent was to impose a preponderance standard. However, deleting the word “clearly” was not the only change that was made. In addition, the burden was shifted, and trial courts must now cite a statutory ground to terminate and the termination must be in the child’s best interests. The Moss panel also improperly ruled that a parent’s constitutional rights are lessened once a statutory ground is deemed applicable.

Moss goes against legislative intent, as well as constitutional principles regarding the standard of proof in termination cases. As a result, Moss should be overturned.

By denying leave in Maes, the Supreme Court has indicated it is not ready to address these pressing jurisprudential issues. Meanwhile, HRC will continue to be misapplied and the incorrect standard in Moss will be invoked, all to the detriment of parents across the state.