Michigan Appeals Court Split On Termination Of Mom’s Parental Rights

Clear and convincing evidence existed to terminate the mother’s parental rights in this case and doing so was in the child’s best interest, the Michigan Court of Appeals has ruled in a split decision.

In the case of In re G. T. Riley, Minor (Docket No. 364610), a 2-1 Court of Appeals held the evidence supported terminating the respondent-mother’s parental rights to her minor child, GTR, under MCL 712A.19b(3)(i) and (j). Those statutory factors are:

• “(i) Parental rights to 1 or more siblings of the child have been terminated due to serious and chronic neglect or physical or sexual abuse, and the parent has failed to rectify the conditions that led to the prior termination of parental rights.”

• “(j) There 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. parent’s rights to one or more siblings of the child previously terminated.”

The respondent had appealed the Wayne County trial court’s termination order, claiming there was insufficient evidence to meet the statutory grounds for termination and that termination was not in GTR’s best interests.

The Court of Appeals disagreed with the respondent in a majority decision joined by Judge James Robert Redford and Judge Kirsten Frank Kelly.

“Given GTR’s need for permanence and stability, the significant issues that led to respondent’s prior terminations, and the only minimal changes to her life and parenting since the earlier terminations, the trial court did not clearly err in finding that termination served GTR’s best interests,” the appellate majority said.

Judge Michelle M. Rick dissented. “In my view, statutory grounds for termination were entirely nonexistent in this case,” she said. “Instead, mother has merely been penalized for her inability to afford her own housing and for minor marijuana use, neither of which have any demonstrated negative effect on her ability to parent GTR.”

Background

The Department of Health and Human Services (the DHHS) filed the original petition against the respondent in September 2022, asking that GTR be removed from her care and that her rights be terminated. The respondent had lost her parental rights to six of her other children in early 2022 for improper care, unsuitable housing, physical abuse and failure to adhere to a case service plan (CSP).

In the present case, the conditions leading to termination of the respondent’s parental rights were 1) not obtaining her own housing and  2) not complying with a CSP, particularly regarding drug testing requirements. Based on these factors, the DHHS claimed that GTR was at risk of harm if returned to the respondent’s care and custody.

At a hearing, the respondent testified that she used to smoke marijuana but decided to quit because she believed it negatively affected her. She submitted to two drug screens before the termination hearing and the results were negative. As for housing, the mother lived with a friend and his wife. A foster care worker testified that she had concerns with the respondent’s housing situation and believed GTR should not be returned to the mother. The respondent testified, however, that she had recently gotten a new job, applied for a mortgage and was looking for a home.

A Child Protective Services (CPS) worker indicated that termination was in GTR’s best interests mainly because the respondent did not remedy the problems with her housing situation and drug use that led to the termination of parental rights to her six other children. Meanwhile, the foster care work stated that, when it came to GTR, the respondent “holds him, talks to him, changes diapers, feeds him. They watch movies on her phone. She hugs and kisses him. She’s very affectionate.”

The trial court stated in its ruling: “The Court cannot and will not put [GTR] through what those other children went through, and that is a mother who’s inconsistent in showing reunification efforts. This child deserves and needs permanence and stability. Stability is what you cannot and have not been able to show that you can provide, and all children need stability.” Accordingly, the trial court entered an order of adjudication taking jurisdiction over GTR and terminated the respondent’s parental rights under MCL 712A.19b(3)(i) and (j).

The respondent appealed.

Termination Supported?

In its opinion, the Court of Appeals majority explained why the trial court properly terminated the respondent’s parental rights.

“Although the record establishes that respondent regularly visited GTR throughout this case, with no concerns identified during these visits and she worked to remedy her issues with visitation, it is undisputed that she still lacked proper housing of her own at the time of termination, an ongoing and unrectified issue throughout the earlier termination case,” the majority wrote. “Given this continued issue, the trial court correctly determined that clear and convincing evidence established ground to terminate respondent’s parental rights to GTR pursuant to subsection (3)(i).”

In addition, the respondent’s continued lack of appropriate housing also supported termination, the majority said. “Specifically, this significant, unremedied parenting deficit created a reasonable likelihood that GTR would be harmed if returned to respondent’s care. Evidence supported the trial court’s finding given the concerns regarding respondent’s drug use. And despite respondent’s presumably negative drug test provided at the eleventh hour of the termination proceedings and her testimony that drug use was not a continuing issue, the record shows that GTR tested positive for marijuana at birth in June 2022 - four months after the prior terminations and less than six months before the termination in this case - and that respondent refused multiple drug screens offered during relevant times. Under these circumstances, the trial court did not clearly err in finding that clear and convincing evidence established statutory grounds to terminate respondent’s parental rights under MCL 712A.19b(3)(i) and (j).”

Regarding the best interests of GTR, the majority stated: “A preponderance of the evidence in the record supports the trial court’s decision that termination served GTR’s best interest. Although respondent endeavored to make some improvements in her parenting, particularly concerning visitation, and she acted appropriately with the child during visits and had an established bonded with him, respondent still had not remedied her inadequate housing over three years after being ordered to do so in the earlier termination case. During this case, respondent continued to place much blame for the prior terminations on external factors like COVID-19 and the conduct of workers on the case. She failed to fully acknowledge her responsibilities and role in the terminations, and even disputed various determinations from the previous case. Concerns also exist from GTR’s positive marijuana screen at birth and associated risks regarding respondent’s parenting ability.”

Judge Michelle Rick, however, disagreed with the majority’s conclusion.

“A thorough review of the record indicates that the trial court’s ruling on both statutory grounds for termination is entirely unsupported by the facts of the case,” Judge Rick wrote in her dissent. “The record indicates that mother’s rights to her other children were terminated as a result of physical abuse, a failure to provide proper care and support for the children, and a failure to comply with a CSP, including a failure to regularly visit the children and obtain appropriate housing. As an initial matter, there were no allegations of physical abuse in this case.”

Regarding visitation, the respondent “rectified her past failure to visit with her children by attending parenting time visits with GTR and going to his doctor’s appointments,” the judge explained. “No concerns about mother’s interactions with GTR have ever been reported; to the contrary, the foster care worker assigned to the case testified that mother was always appropriate with GTR, made a concerted effort to interact with him during visits, and was actively involved in his medical care.”

As for housing, “the CPS worker agreed that the home where she and GTR were staying prior to his removal from her custody was generally appropriate for children,” Judge Rick observed. “Furthermore, contrary to what the CPS worker testified, mother testified that she had obtained a bed for GTR, applied for a mortgage, and contacted a realtor to help her find independent housing. While the court noted its concerns about mother’s failure to find independent housing, it never articulated why the home where mother was staying was an inappropriate place for GTR to live. The court also wholly discounted that the CPS and foster care workers agreed the home was appropriate for children, and disregarded mother’s testimony that she was trying to find independent housing.”

Judge Rick then addressed the respondent’s marijuana use, saying the trial court was “overly concerned” with GTR testing positive for marijuana at birth and “dismissed” the testimony that GTR did not suffer any negative effects or withdrawal symptoms. “[T]here was no evidence that mother’s marijuana use affected her ability to parent GTR, and even if it had, mother testified that she had stopped using marijuana and presented two drug tests confirming that she tested negative for marijuana.”

Therefore, “I would conclude that insufficient evidence was presented to support the termination of mother’s parental rights under MCL 712A.19b(3)(i) and (j),” Judge Rick said.

Legislative ‘Drawbacks’

According to Judge Rick in her dissent, “This case exemplifies the drawbacks of Michigan’s current child welfare legislative scheme.”

MCL 712A.19b(3)(i) “effectively presumes that a parent who loses their parental rights to one child should also be at risk of losing their parental rights to their other children as well, regardless of what steps the parent takes in the meantime to rectify the conditions that led to the earlier termination,” the judge explained. “From the time that mother’s rights to her other children were terminated to the time that her rights to GTR were terminated, mother made significant improvements and was well on her way to showing that she could properly parent GTR. But because the earlier terminations weighed so heavily against her, she was never given a chance to avoid the termination of her parental rights to GTR. Thus, in this case, mother was essentially doomed to lose her parental rights, and the efforts she made at improvement were futile.  Applying MCL 712A.19b(3)(i) to such cases, particularly where the parent has tried to remedy the issues that led to the prior termination, is unjust to both parent and child.”

However, “[t]his is not to say that MCL 712A.19b(3)(i) does not have its uses,”Judge Rick stated. “Obviously, it is valuable when applied in cases involving ‘serious and chronic neglect or physical or sexual abuse,’ as set forth in the statute. However, those conditions did not exist here. It is my opinion that trial courts and [the] DHHS may be too quick to use subsection (3)(i) as a catch-all provision, even where the parent should ostensibly be given a chance to show that they can rectify the conditions that led to a previous termination. We should take care not to lose sight of the principle that ‘[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.’ … Even parents who have neglected their children should be given an opportunity to prove that they can rectify the issues leading to state intervention. Mother was given no real opportunity to do so here. “

Therefore, “I would reverse and remand for reinstatement of mother’s parental rights to GTR,” Judge Rick concluded.