Social Worker’s Disciplinary Action Not ‘Pivotal’ To Termination Of Father’s Parental Rights

The trial court properly terminated a respondent-father’s parental rights even though the decision to do so was partly based on the testimony of a social worker who was the subject of disciplinary proceedings, the Michigan Court of Appeals has ruled.

The respondent-father in In re Bachman, Minors (Docket No. 363733) had an “extensive history” with Children’s Protective Services (CPS), as did the respondent-mother (Docket No. 363801). Throughout these child-protective proceedings, the respondents were also getting a divorce. The Livingston County Circuit Court held that the respondents had not sufficiently benefited from court-offered services and that termination of their parental rights was in the best interests of the children. 

Specifically, the trial court terminated the respondent-father’s parental rights under MCL 712A.19b(3)(c)(i) (failure to rectify conditions leading to adjudication), MCL 712A.19b(3)(g) (failure to provide proper care or custody) and MCL 712A.19b(3)(j) (likelihood of harm if children returned to parent). He appealed the termination, arguing the trial court erred because the suspension of his parenting time that occurred on April 29, 2021 was based on the testimony of James Henry, a social worker who had been disciplined by the Disciplinary Subcommittee of the Board of Social Work for not having a valid license. (See, “Michigan stopped sending traumatized kids to his center. Who will suffer the consequences,” Detroit Free Press, July 10, 2023.)

The Court of Appeals rejected the respondent-father’s argument.

“Henry’s assessments and testimony were not the only pieces of evidence on which the trial court relied in suspending parenting time,” the Court of Appeals said. “In other words, the ‘limited’ nature of Henry’s licensure was not particularly pivotal.”

Therefore, “reversal under the plain-error doctrine is not warranted,” the Court of Appeals held.

Judges Elizabeth L. Gleicher, Kathleen Jansen and Michelle M. Rick were on the appellate panel that issued the unpublished opinion.

 ‘Limited’ License Not ‘Pivotal’ 

In its opinion, the Court of Appeals first noted that unless there are “aggravated circumstances,” the Michigan Probate Code says the Department of Health and Human Services (DHHS) has an “affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights” and the adequacy of these efforts “may bear on whether there is sufficient evidence to terminate a parent’s rights.”

Here, the respondent-father contended that DHHS did not comply with its statutory duty because the suspension of his parenting time on April 29, 2021 was improper. Addressing this argument, the Court of Appeals noted that DHHS filed its final termination petition on May 27, 2021. “A trial court has explicit statutory authority to suspend parenting time once a termination petition has been filed,” the panel said, citing MCL 712A.19b(4).

The respondent-father specifically argued that the trial court improperly suspended his parenting time because of a consent order related to Henry that was signed in April 2021. The consent order “stated that Henry needed to complete continuing education classes in ethics and pay a $2,500 fine, or his license as a social worker would be suspended,” the Court of Appeals observed. “Henry had proper educational credentials but had been practicing social work in 2018 without being licensed, and had improperly referred to himself as a doctor. He had not needed a license to act as the director of a children’s trauma center but was involved with social work such that a license was needed. He averred that he took responsibility for his actions and had not meant to be deceptive. Henry obtained licensure as a limited license master social worker on March 5, 2020, and again on March 5, 2021.”

The respondent-father maintained that attorneys “across the state” of Michigan “have learned that the DHHS was no longer to refer children for assessment to the Childhood Trauma Assessment Center, was no longer to use James Henry as an expert, and was not to use assessments completed at [the trauma center] in the past.” (See, “State cuts contract with WMU child trauma center as its leader was unlicensed,” MLive, July 17, 2023.)

The Court of Appeals rejected this argument, saying it was “unsupported by any documentation.”

The trial court “explicitly did not qualify Henry as an expert,” the appellate panel explained. “Also, certain trauma assessments at issue were undertaken and Henry’s testimony was taken after he had obtained his limited licensures. We note that LaShawn Strickland, who holds a ‘limited license master of social work[],’ was qualified as an expert in ‘counseling for foster care/CPS cases’ earlier in the proceedings.”

The Court of Appeals also pointed out that Henry’s assessments and testimony were not the only evidence relied on by the trial court to suspend parenting time. “At the pertinent hearing, the caseworker reported that some visitations had gone well and some had gone poorly. … The caseworker at the children’s guardian ad litem (GAL) wanted a goal change to adoption. In addition, the children’s therapist said that their dysregulation was severe and concerning. The [trial] court agreed with the suggested goal change and with the suspension of parenting time. It explicitly relied not only on Henry’s statements but on statements from the caseworker and the therapist. Respondent-father contends that he should have been informed about the disciplinary proceedings and should have been allowed to cross-examine Henry. But again, by the time in question Henry was licensed, and the court’s decision was supported by two additional witnesses.”

Therefore, reversal on the respondent-father’s claims was “not warranted,” the Court of Appeals concluded.

As to the respondent-mother, the Court of Appeals rejected her assertion that the trial court improperly suspended her parenting time and wrongly found statutory grounds for termination. The trial court’s suspension of parenting time “was amply supported by the evidence,” the appellate panel said. “We do not have a firm and definite conviction that the trial court made a mistake in finding that the statutory grounds for termination had been established.”