Mom Cannot Be Faulted For Failing To Complete ‘Nonexistent’ Case Treatment Plan

An order terminating a mother’s parental rights must be reversed because no case treatment plan existed and she “could not be faulted for failing to complete a nonexistent treatment plan,” the Michigan Court of Appeals has ruled.

As a result, the mother should be allowed to participate in a case treatment plan, the Court of Appeals held.

In In re Smith, Minors (Docket No. 353134) the Wayne County Circuit Court terminated the respondent-mother’s parental rights to her two children under MCL 712A.19b(3)(g) (failure to provide proper care or custody) and MCL 712A.19b(3)(j) (reasonable likelihood the child will be harmed if returned to parent). The respondent appealed, arguing the Michigan Department of Health and Human Services (DHHS) violated her due process rights. She maintained the DHHS, in attempting to terminate her parental rights, continually relied on an argument that she had “failed to comply with and benefit from a case service or treatment plan” when, in fact, no such plan was on file.

The Court of Appeals reversed and remanded the case.

“Because no treatment plan existed, respondent could not be faulted for failing to complete a nonexistent treatment plan,” the Court of Appeals wrote. “However, [the DHHS] tried to salvage its case in the trial court by trying to have it both ways – faulting [the respondent] for not completing a treatment plan while simultaneously maintaining that no treatment plan was required. … Such procedures are fundamentally unfair and cannot support the termination of respondent’s fundamental right to parent her children.”

Judges Elizabeth L. Gleicher, Stephen L. Borrello and Brock A. Swartzle were on the panel that issued the unpublished opinion.

Background

The case stemmed from the alleged physical abuse of the respondent’s son, JS, by JS’s father. The DHHS filed a petition to terminate the respondent’s parental rights to JS based on an unfit home and her failure to protect JS.

The trial court took jurisdiction over JS and held a termination hearing, finding the DHHS had established statutory grounds to terminate the respondent’s parental rights. However, the trial court also found that it was not in JS’s best interests to terminate the respondent’s parental rights because testimony established the respondent and JS were bonded and the respondent played an important role in JS’s medical care.

Thereafter, the trial court dismissed the termination petition and ordered that adoption was no longer the permanency plan. Rather, the trial court changed the permanency plan to a guardianship. The trial court also stated on the record that the respondent was to engage in certain services, including a psychological assessment, parenting classes, maintaining legal income and suitable housing, and supervised visits.

As the proceedings continued in the trial court, the respondent gave birth to another son, JB. Following his birth, the DHHS filed both a petition to terminate the respondent’s rights to JB and a supplemental petition to terminate the respondent’s parental rights to JS.

The trial court took jurisdiction over JB and held termination proceedings regarding both JS and JB. The trial court ultimately terminated the respondent’s parental rights to JS and JB. The trial court did so despite acknowledging, in response to an objection by the respondent’s attorney, that there was no treatment plan or order regarding a treatment plan for the respondent in the court file.

When announcing its decision to terminate the respondent’s parental rights, the trial court stated: “She’s learned nothing. There’s no likelihood that she’s going to change.”

The respondent appealed.

Due Process

On appeal, the respondent argued that her due process rights were violated by the DHHS’s “pervasive reliance on argument and evidence” that she failed to comply with and benefit from a case service or treatment plan “when respondent was never ordered to comply with a case service plan and there is no such plan in the court file.”

Meanwhile, the DHHS concurred on appeal “that respondent is entitled to relief on this ground, having filed a motion for peremptory reversal in which petitioner acknowledged that respondent was never ordered to comply with a service plan and in which petitioner asked this Court to reverse the termination of respondent’s parental rights and remand for purposes of properly allowing respondent to participate in services,” the Court of Appeals noted.

Here, the trial court initially decided not to terminate the respondent’s parental rights to JS based on the determination that termination was not in JS’s best interests and dismissed the petition to terminate respondent’s parental rights to JS, concluding that the goal would be a guardianship rather than adoption, the Court of Appeals explained. “Although the trial court orally referenced certain services for respondent, it is undisputed that the court file contains no service plan and that an order requiring respondent to comply with and benefit from a case service plan was never entered. The trial court acknowledged during the termination proceedings that the record was lacking in this respect.”

Moreover, the record showed the respondent engaged in at least some of the services referenced by the trial court, the Court of Appeals observed. “Presumably, when the court declined to terminate respondent’s parental rights, its intention was for respondent to remain a long-term presence in JS’s life consistent with the recommendation of his therapists. Thus, services could assist in insuring that respondent would be a stable figure in JS’s life as well as possibly prevent a future termination of her parental rights.”

However, when the DHHS decided to seek termination of the respondent’s parental rights to both JS and JB, it “relied heavily on contending that respondent had failed to comply and benefit from a nonexistent service plan in order to justify petitioner’s actions in seeking termination of respondent’s parental rights and to demonstrate evidentiary support for the statutory grounds warranting termination,” the Court of Appeals said. “During these termination proceedings involving JS and JB, foster-care worker Jalen Robinson and CPS specialist Jasmin Wilson testified that respondent had not complied with or benefited from ‘the’ treatment plan. The reason that was probably true is, again, there was no treatment plan.”

Once the trial court recognized there was no treatment plan in the file, “it appears that the trial court ruled in accordance with petitioner’s responsive argument that services were not required since the goal was never reunification,” the Court of Appeals said. “Even if this is true, which is very difficult to ascertain given the unconventional and meandering procedural path of this case, the record is clear that respondent’s so-called failure to comply with a nonexistent formal treatment plan was held against her in a substantial way that resulted in the termination of her parental rights. Because no treatment plan existed, respondent could not be faulted for failing to complete a nonexistent treatment plan. … Thankfully, petitioner recognizes its error now on appeal.”

Accordingly, the Court of Appeals reversed the trial court’s order terminating the respondent’s parental rights and remanded the case “to allow respondent to participate in services.”