Michigan Supreme Court Raises Questions For Supplemental Briefing In Termination Of Parental Rights Case
Docket Nos. 167745, 369359
MI Supreme Court Order Issued: January 24, 2025 (Read the MI Supreme Court order here)
MI Court of Appeals Opinion Published: September 19, 2024 (Read the MI Court of Appeals opinion here)
Lenawee County Circuit Court
Holding: The Supreme Court granted an application for leave to appeal the September 19, 2024, judgement of the Court of Appeals. Previously, the Court of Appeals found plain error after the Trial Court held that Respondent-Mother was not entitled to reasonable efforts to reunify her with her children and when it failed to inform Respondent-Mother of her right to appeal the Trial Court’s removal of the children from her care.
Facts: Petitioner in this case, DHHS, filed a petition for permanent custody against Respondent-Mother that alleged it was contrary to her children’s welfare to remain in her custody due to a variety of harmful factors. The primary impetus for the petition was a forensic interview given by one of Respondent-Mother's children, CB, wherein CB disclosed that Respondent-Mother had observed adult men sexually abusing CB on two separate occasions. CB stated that Respondent-Mother did nothing to stop the abuse and allowed one of the incidents to occur to get drugs. The Trial Court suspended all Respondent-Mother's time and contact with the children after a preliminary hearing. In a subsequent written order, the Trial Court found that reasonable efforts to prevent or eliminate removal were not required because of aggravated circumstances (within the meaning of MCL 722.638) were present. The children were placed with their father. At no point did the Trial Court inform Respondent-Mother of her appellate rights regarding its removal decision. The Trial Court ultimately terminated Respondent-Mother's parental rights under MCL 712A.19b(3)(b)(i), (b)(ii), and (j) after finding that termination was in the children’s best interests. Respondent-Mother appealed this decision, and the Court of Appeals reversed the Trial Court’s termination decision and remanded for further proceedings. Petitioner DHHS would then file an application for leave to appeal with the Supreme Court.
Questions Asked by the Michigan Supreme Court for Supplemental Briefing:
Whether reasonable efforts to reunify the child and the respondent must be made where the respondent was not the perpetrator of criminal sexual conduct involving penetration, but instead facilitated, encouraged, or allowed such conduct by a third party in exchange for some benefit, see MCL 712A.19a(2)(a), MCL 722.638(1) and (2).
In its published opinion, the Court of Appeals held that the Trial Court committed plain error when it found aggravated circumstances without evidence that the perpetrators who had committed sexual abuse against CB were a parent or other specifically listed person in MCL 722.638(1)(a). Specifically, the Trial Court never found that the perpetrators were a “parent, guardian, or custodian, or person who is 18 years of age or older and who resides for any length of time in the child’s home.” This was the case despite the fact that the Court noted that “CB unquestionably alleged abuse via criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.” The Court found that “the key question here is whether criminal sexual conduct against a minor child enumerated in MCL 722.638(1)(a)(ii) must be perpetrated by “a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home” to constitute an aggravated circumstance warranting termination at the initial disposition.” After considering two unpublished cases addressing this question, (In re Boyce (Docket No. 348992) released on January 23, 2020, and In re Bergren (Docket No. 354767) released June 3, 2021), the Court held that criminal sexual conduct as an aggravating circumstance “must be committed by a parent or other specifically listed person in MCL 722.638(1)(a).” The Supreme Court has requested supplemental briefing on this issue as better applied to the facts of this case; that is, where the respondent was not the perpetrator of criminal sexual conduct involving penetration, but instead facilitated, encouraged, or allowed such conduct by a third party in exchange for some benefit.
Whether the lack of reasonable unification efforts in this case was plain error affecting the respondent’s substantial rights, see In re Ferranti, 504 Mich 1, 29 (2019)
The Court of Appeals held that the “clear and obvious” error created by the Trial Court’s faulty interpretation of MCL 722.638 prejudiced Respondent-Mother even though Respondent-Mother did not provide a “substantive argument that the outcome of this case was affected by the trial court’s error.” Along these lines, the Court of Appeals found that “it is unclear how an aggrieved respondent could establish outcome-determinative error concerning the denial of reunification services altogether and . . . the error improperly dispensed with a critical aspect of a child protective proceeding—the requirement to offer reunification services before terminating parental rights—affected the very framework within which this case progressed, undermined the foundation of the rest of the proceedings, and impaired respondent’s fundamental right to direct the care, custody, and control over her children.” The Court of Appeals found the case of In re Ferranti, 501 Mich 1 (2019), to be on point with this case even though the error occurred prior to the adjudication. Nevertheless, the Court held that “the error nevertheless impaired respondent’s fundamental right to direct the care, custody, and control over her children in the first instance, and it unquestionably affected the very framework within which this case progressed and undermined the foundation of the rest of the proceedings.” This holding prefaced the Court of Appeals' decision to reverse the Trial Court’s termination order. The Supreme Court cited In re Ferranti in its request for supplemental briefing as to the question of whether the lack of reasonable unification efforts in this case was plain error affecting the respondent’s substantial rights.
Whether DHHS satisfied the requirements of MCL 722.638(3) and, if so, whether the termination of the respondent’s parental rights should be affirmed under that provision, see MCR 9.965(B)(15)
If DHHS “is considering petitioning for termination of parental rights at the initial dispositional hearing as authorized under section 19b of chapter XIIA of 1939 PA 288, MCL 712A.19b, even though the facts of the child's case do not require departmental action” under MCL 722.638(1), then MCL 722.638(3) requires that DHHS “shall hold a conference among the appropriate agency personnel to agree upon the course of action.” MCL 722.638(3) also requires DHHS “to notify the attorney representing the child of the time and place of the conference, and the attorney may attend.” In the case that “an agreement is not reached at this conference, the department director or the director's designee shall resolve the disagreement after consulting the attorneys representing both the department and the child.” In a footnote, the Court of Appeals stated that it “acknowledge[d] that MCL 722.638(3) alludes to other circumstances where a petitioner may request termination at the initial disposition even if the facts do not support the existence of aggravated circumstances.” The Court then stated that “[n]otably, in addition to when a trial court finds aggravated circumstances under MCL 722.638(1) and (2), reasonable efforts also need not be made when a parent has been convicted of various listed offenses,” citing MCL 712A.19a(2)(b). The Court concluded that “MCL 722.638(3) relates to these other circumstances, none of which are at issue here” and “that MCL 722.638(3) shows that the Legislature can and has specifically distinguished when a parent should be held responsible for allowing or facilitating another’s conduct.” The Supreme Court has requested supplemental briefing on the issue of whether DHHS met the requirements of MCL 722.638(3) given the order of events in this case.
Whether the failure to advise the respondent of her right to appeal following the preliminary hearing was plain error affecting the respondent’s substantial rights
Originally, Respondent-Mother argued in the Court of Appeals that the Trial Court violated MCR 3.971(B)(6)–(8) because it failed to advise her of her right to appeal the Trial Court’s findings from the preliminary hearing. The Court of Appeals disagreed as these rules only apply to siuations where the respondent offered a plea to establish a basis for the trial court to authorize a petition, which is something Respondent-Mother never did. Nevertheless, the Court of Appeals found that MCR 3.965(B)(15), which requires that “[i]f the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action,” was violated. This “plain error,” according to the Court, “prejudiced” Respondent-Mother in that “the trial court’s erroneous aggravated-circumstances finding impaired respondent’s fundamental right to direct the care, custody, and control over her children in the first instance, and it unquestionably affected the very framework within which this case progressed and undermined the foundation of the rest of the proceedings.” The Court of Appeals held that “had the court instructed respondent of her appellate rights at this time as required, she very well could have succeeded on the aggravated-circumstances before the case proceeded immediately to termination.” In its order, the Supreme Court requested supplemental briefing on the issue of whether, and to what extent, MCR 3.965(B)(15) was violated in this case.
The Supreme Court invited the Family Law and Children’s Law Sections of the State Bar of Michigan, the Legal Services of MIchigan, the Michigan State Planning Body for Legal Services, the Prosecuting Attorneys Association of Michigan, and the University of Detroit Mercy Law Juvenile Appellate Practice Clinic to file briefs amicus curiae. Justice Kimberly A. Thomas did not participate in the issuance of the order.
