The trial court improperly held that statutory grounds supported the termination of a mother’s parental rights, the Michigan Court of Appeals has ruled, finding the trial court “overemphasized” the mother’s use of marijuana.

The Livingston County Circuit Court in In re Cookson, Minor (Docket No. 364097) terminated the respondent-mother’s parental rights to her minor child, AC, under MCL 712A.19b(3)(c)(i), (g) and (j). Those statutory factors are 1) conditions that led to the adjudication continue to exist, 2) failure to provide proper care and custody, and 3) reasonable likelihood of harm if returned to parent.

On appeal, the respondent argued the trial court erroneously found by clear and convincing evidence that these statutory grounds for termination existed.

The Court of Appeals agreed in a 2-1 decision, reversing and remanding the case for reinstatement of the respondent’s parental rights.

“Despite all of th[e] evidence, the trial court overlooked that mother did make steps toward complying with the CSP [case service plan],” the Court of Appeals majority said. “Mother successfully completed the Orchard’s Children Program and maintained employment. … [M]other was entirely able and willing to rectify the barriers to her reunification with AC.”

Moreover, “the trial court’s concern about reunification appeared to focus on respondent’s unwillingness to regularly submit to drug testing or to stop using marijuana,” the majority wrote. “The trial court’s overemphasis on mother’s marijuana consumption led it to ignore that there was not a demonstrated risk of harm to AC caused by her use of marijuana.”

Judge Elizabeth L. Gleicher and Judge Michelle M. Rick joined the majority opinion.

Judge Kathleen Jansen dissented, saying she would affirm the termination of parental rights. “The trial court’s factual findings were supported by the record, and therefore, the court did not clearly err in determining that termination was in the child’s best interests.”     

Background

The Department of Health and Human Services (the DHHS) petitioned the trial court to remove AC and two of his half-siblings from the respondent’s care, due to allegations of improper supervision and medical neglect. The DHHS noted in particular that one child had “significant untreated burns.” The trial court placed AC in foster care and the respondent was provided supervised parenting time.

The respondent ultimately entered a plea to the allegations. She also acknowledged that she had a prior history with Child Protective Services (CPS), including contact with CPS regarding smoking marijuana around the children and testing positive for marijuana while pregnant. The trial court accepted the respondent’s plea and exercised jurisdiction over AC. The trial court adopted the DHHS’s recommendations in the CSP, which included a psychological evaluation, a substance abuse evaluation, regular drug and alcohol testing, obtaining and maintaining housing, obtaining and maintaining a source of income and parenting education services.

The respondent initially complied with the CSP’s various requirements. In March 2020, her drug and alcohol testing paused because of the COVID-19 pandemic. When testing resumed on June 1, 2020, the respondent did not appear for testing on that date. In the meantime, she had obtained a home, completed an online parenting class and was in counseling. Thereafter, the trial court gave the DHHS discretion to allow unsupervised parenting time if the respondent was screening negative for marijuana. The respondent’s compliance, however, with drug and alcohol testing “was minimal” and, when she was screened, the results were often positive for marijuana.

In July 2021, the DHHS filed a supplemental petition seeking to terminate the respondent’s parental rights to AC. During this time, the respondent continued to be inconsistent with calling the daily notification system for drug and alcohol testing, and she continued to test positive for marijuana when she did test. In November 2021, the respondent stopped attending counseling. Meanwhile, the program that was supervising in-home parenting time reported that she was prepared for visits, was engaged and was nurturing during the visits. It also reported that the home smelled of marijuana, although the respondent was not seen using marijuana during visits. 

The trial court ultimately found clear and convincing evidence that statutory grounds existed to terminate the respondent’s parental rights. The trial court also determined that the DHHS established by a preponderance of the evidence that termination of parental rights was in AC’s best interests.

The respondent appealed the termination of her parental rights.

‘Overemphasis’ On Marijuana

In its opinion, the Court of Appeals focused on the trial court’s findings under MCL 712A.19b(3).

“In determining that termination was warranted under MCL 712A.19b(3)(c)(i), the trial court focused on mother’s failure to fully adhere to the CSP and follow the recommendations from the psychological evaluation and substance abuse assessment, particularly the recommendations for drug and alcohol testing and for mental health and substance abuse counseling,” the Court of Appeals wrote. “The court found that mother did not benefit from counseling, noting that she engaged in counseling for a period of time, but did not attend any sessions from November 30, 2021 until June 7, 2022.  The court found that the timing of her reengagement in counseling was suspect because the termination hearing was scheduled to begin 10 days later. The court also had concerns about statements that mother allegedly made … about her use of edibles and her drug testing requirements, and [the] belief that the statements were indicative of her failure to take responsibility for her actions. Regarding her failure to address her substance abuse issues, the court observed that mother testified that she was not addressing substance abuse in counseling because she did not have a substance abuse problem. The court opined that this showed a lack of insight and failure to benefit from services, particularly given that mother admitted during her plea to a history of substance abuse and continued to use marijuana in violation of court order and her CSP. The court could not determine whether mother was sober because she missed a significant number of drug screens. The court found that mother’s explanation for her failure to test as ordered lacked credibility, and that her choice not to prioritize testing was made despite her awareness that testing was an important component of the reunification process.”

Further, the trial court “found that mother failed to rectify her lack of parenting skills,” the Court of Appeals explained. “The court noted that during the early stages of the case, DHHS was given discretion to allow unsupervised parenting time, but parenting time was returned to supervised because of mother’s failure to comply with court orders and her CSP. The court found that mother missed visits with AC throughout the case. The court believed that the missed visits showed mother’s failure to prioritize AC and the work necessary to improve her parenting skills.  It noted that a caseworker testified that mother successfully completed the Orchard supportive visitation program, but that a concern existed because she did not continue to demonstrate those skills at later visits.”

However, “the trial court overlooked that mother did make steps toward complying with the CSP,” the Court of Appeals observed. “Mother successfully completed the Orchard’s Children Program and maintained employment. Regarding parenting time, mother’s visitation coaches reported that mother was encouraging, nurturing, and engaged in play with AC in a positive manner. She appeared to be adept at managing her behavior, implementing a safety plan, and helping AC develop self-esteem and a sense of independence. All of these factors suggest that mother was entirely able and willing to rectify the barriers to her reunification with AC.  Regarding housing, there was an issue with AC’s bedroom being unsuitable for him due to the presence of cat feces, vomit, and urine, but mother indicated that she would fix this problem. In all other respects, mother’s housing was safe and adequate for children, and there was no evidence presented to suggest that the room could not be cleaned and reassessed for appropriateness in a short amount of time. Regarding employment, there was no dispute that mother made efforts to maintain employment throughout the proceedings, consistent with the terms of the CSP.”

“Above all,” the Court of Appeals continued, “the trial court’s concern about reunification appeared to focus on respondent’s unwillingness to regularly submit to drug testing or to stop using marijuana. Mother reported that she uses marijuana for medical reasons, including rheumatoid arthritis. Although the trial court disliked mother’s use of marijuana, there is no concrete evidence that her marijuana use actually interfered with her ability to parent AC or properly care for him. To the contrary, the evidence overwhelmingly indicates that there were no significant concerns about marijuana use during mother’s parenting time visits and plenty of evidence that mother appropriately cared for AC during those visits. The trial court’s overemphasis on mother’s marijuana consumption led it to ignore that there was not a demonstrated risk of harm to AC caused by her use of marijuana. Trial courts must remember that ‘[c]hild protective proceedings are not criminal proceedings,’ and unlike criminal proceedings, the ‘purpose of child protective proceedings is the protection of the child,’ not to determine the parent’s guilt or innocence.”

Moreover, “it must be noted that the termination of mother’s parental rights was founded in the doctrine of anticipatory neglect, due to the improper supervision and medical neglect of AC’s half-siblings,” the Court of Appeals said. “Although it was suggested that mother’s marijuana use was related to these issues, the record does not fully substantiate this presumption.  In the absence of such evidence, ‘[d]rug use alone … cannot justify termination solely through operation of the doctrine of anticipatory neglect.’ … Mother has made positive steps toward reunification, and there is no demonstrated risk of harm from her use of marijuana. Accordingly, we conclude that the trial court erred by finding that clear and convincing evidence existed to support terminating mother’s parental rights under MCL 712A.19b(3)(c)(i).”

According to the Court of Appeals, “The same is true when it comes to the trial court’s findings under MCL 712A.19b(3)(g) and (j). There is no evidence that mother’s use of marijuana interfered with her ability to parent AC, suggesting that clear and convincing evidence did not exist to support terminating her parental rights under MCL 712A.19b(3)(g). More importantly, there is no evidence that mother currently presents a risk of harm to AC if he were to be returned to her care. Mother made great strides toward learning how to appropriately parent and care for AC, and she has maintained appropriate housing and employment. Furthermore, we reiterate that there is no evidence that mother’s marijuana use presents a current risk of harm to AC.”

Therefore, “we conclude that there was not clear and convincing evidence to support terminating mother’s parental rights under MCL 712A.19b(3)(j),” the Court of Appeals said. “Mother has successfully shown that the trial court erred by finding that statutory grounds supported the termination of her parental rights and that termination was in AC’s best interests. Furthermore, although the trial court did not violate the [Michigan Regulation and Taxation of Marihuana Act] by considering mother’s marijuana use in making its statutory-bases determination, we again reiterate that it ultimately reached the incorrect result by overemphasizing the role that marijuana played in mother’s ability to properly parent AC. We reverse and remand for reinstatement of mother’s parental rights to AC.”