The MI Court of Appeals (COA) held the Ingham County trial court’s termination of a father’s rights was clearly erroneous where the rights were terminated because (1) the conditions that led to the adjudication continued to exist, (2) the father failed to provide proper care and custody and (3) there was a reasonable likelihood of harm if the situation continued.

The case of In re E.W. Pops, Minor (No. 328818) began when EP’s father was stopped after fleeing from the police for 14 blocks. EP was in the car and came under the jurisdiction of the court when his father pled no contest to the neglect petition. The petitioner [Department of Health and Human Services, (DHHS)] placed EP with his paternal grandmother who had been his caregiver since birth. EP was removed from grandmother and placed in foster care when DHHS discovered she had a criminal record and couldn’t obtain a foster-care license. Father was sentenced to 18 month’s probation. While on probation he participated in the services provided by DHHS, but was sent to prison for carrying a concealed weapon. Grandmother tried to get a guardianship over EP but was denied twice. DHHS filed a petition to terminate the father’s rights, which was granted.

The COA looked at the three grounds used by the trial court for termination. Addressing the first - that the court can terminate when it finds that the conditions that led to the child being under court control continue to exist and there is no reason to expect the situation to change within a reasonable time; and the second - the parent fails to provide proper care and custody for the child and there is no reason to expect the situation to improve in a reasonable period of time as one, the COA said,

1. The trial court held termination was proper because there was criminal activity when the matter was opened and there was still criminal activity since the father was later imprisoned for carrying a concealed weapon. The COA disagreed, stating that if the father provided adequate care through placement with the grandmother, the mere act of incarceration is not sufficient to terminate parental rights.

2. The father argued that he provided proper care and custody for EP by placing him with his grandmother. Courts have found this placement option available for incarcerated parents. However, the caseworker reported that the grandmother’s criminal background prevented her from becoming a foster parent, a requirement for placement of the child.

3. But, the COA pointed out, only convictions for child abuse and neglect or felony convictions preclude foster care licensure. The grandmother had neither. Thus, the COA concluded that the DHHS was wrong when it determined the grandmother’s misdemeanor criminal history barred her from licensure when it had discretion to place EP with her during the father’s incarceration.

4. The trial court also stated that the father had not participated meaningfully in recommended services. However, evidence presented at the trial showed that the father did participate in services when he had the opportunity.

The third ground for termination, that the trial court may terminate if there is clear and convincing evidence that returning the child to the parent would place him in danger, was found to be wrong. The COA stated the trial court terminated solely because the father was incarcerated and EP would “obviously” be harmed if returned to him. “To the extent that the trial court’s statement,” wrote the COA, “implies that” the father’s criminal record put EP in danger, “such a finding is clearly erroneous.”

In looking at criminal convictions as basis for termination, the Michigan Supreme Court has considered whether the crimes are for the abuse or death of a child, or if the parent committed murder, attempted murder or voluntary manslaughter of one of his own children. In this case, the COA said, “failing to immediately pull over for a traffic stop under these circumstances does not create and ‘unreasonable risk of abuse or death.’”

The COA reversed the decision of the lower court, saying “We are left with a firm and definite conviction that the trial court clearly erred by determining that the termination of parental rights was proper under MCL 712A.19b (3)(i).”