The Michigan Court of Appeals reversed the lower court decision terminating the father’s rights to his child because of the termination of his rights to two children in the past (MCL 712.19b (3)(l) - termination where parent’s rights to another child have been terminated.)

FACTS: According to the facts, the father had provided KDR, KDR’s mother and a child belonging to KDR’s mother of In re Rutherford (Docket No. 332582) with consistent housing either in his apartment or his mother’s home before birth. There was no evidence presented that KDR was neglected, abused or even poorly cared for.  

The Court of Appeals reversed on several grounds; however, two are of note:

Termination due to prior termination violates due process:

Clear and convincing evidence was presented to support termination of the father’s parental rights under subsection (l), which requires only that a respondent’s parental rights to one or more of the child’s siblings have been terminated pursuant to statute. However, as the court noted, this subsection no longer supports termination since the Court ruled it unconstitutional in a recent opinion by this Court. See Gach, ___ Mich App at___; slip op at 8. This Court explained that in cases where there has been an earlier termination, if it is not clearly and convincingly proved that the parent failed to remedy the earlier abuse or neglect that led to the earlier termination, such as necessary under subsection(3)(i), “application of statutory ground (3)(l) disdains present realities in deference to past formalities” and simply “forecloses the determinative issues of competence and care.” Id. “MCL 712A.19b(3)(l) thus fails to comport with due process in light of the fundamental liberty interests at stake.”

The Court was concerned about the retroactive effect of the Gach decision, decided 18 days after the trial court entered its opinion. However, the Court was persuaded “Not only is Gach directly on point, it involves the due process right of respondent to parent, and is a likely candidate for either full or limited retroactivity.” After reviewing the factors, the Court decided full retroactivity of the rule in Gach was justified.

Termination not in the child’s best interests where relative placement ignored.

Although the Court didn’t have to consider the trial court’s best interests determination, once it was determined there were no statutory grounds, it stated: “the trial court’s best interest determination was in error because it neglected to consider KDR’s relative placement.”

The referee who wrote the 25-page best interest section of the opinion never mentioned the fact that KDR was placed with his mother, a relative. “A trial court’s failure to explicitly address whether termination is appropriate in light of the [child’s] placement with relatives renders the factual record inadequate to make a best interest determination and requires reversal.” Olive/Metts, 297 Mich App at 43 (citation omitted). Thus, because the trial court failed to consider KDR’s relative placement, reversal is required, regardless of the failure of statutory grounds previously discussed.”