Termination Of Mom’s Parental Rights Was In Children’s Best Interests
The trial court properly terminated the respondent-mother’s parental rights because termination was in the children’s best interests, the Michigan Court of Appeals has ruled in a 2-1 decision.
The case of In re Bates, Minors (Docket No. 361566) was before the Court of Appeals on remand from the Michigan Supreme Court (In re Bates, ___ Mich ___ (2023)). On appeal, the respondent argued the Grand Traverse County Circuit Court erroneously found that termination of her parental rights was in the children’s best interests.
The Court of Appeals disagreed and affirmed termination of the respondent’s parental rights.
“We … conclude again - now under the framework of best interests - that the trial court did not clearly err when it concluded that it would not be in the children’s best interest to be returned to respondent and that further efforts toward reunification not be made,” the Court of Appeals said in an opinion joined by Judge Kirsten Frank Kelly and Judge Anica Letica.
Judge Elizabeth L. Gleicher dissented. “[T]he majority belabors mother’s past, barely mentions the children, and avoids confronting powerful evidence that mother and her children were strongly bonded. Nor does the majority explain why a less drastic and restrictive alternative to termination should have been reflexively disregarded. I would remand for a new best-interest hearing guided by the principle that termination is unwarranted where there are less restrictive permanency alternatives that safely preserve parent-child relationships.”
Background
The respondent has two minor children, AAB and AMB. In December 2019, the Department of Health and Human Services (DHHS) filed a petition asking the Grand Traverse County Circuit Court to take jurisdiction over the children, remove them from the respondent’s care, place them with their father and terminate the respondent’s parental rights. The DHHS filed an amended petition in January 2020 because of the respondent’s substance abuse and mental health issues, prior Child Protective Services (CPS) cases involving her abuse of alcohol and her alleged inability to care for her children’s medical needs.
Prior to the DHHS filing its petition, AAB had been diagnosed with Type 1 diabetes. The petition claimed the respondent could not care for AAB because there was an instance where, for several days, she failed to give him insulin and monitor his blood sugar levels, which caused AAB to suffer diabetic ketoacidosis that rendered him comatose in the hospital. The respondent pleaded guilty to one count of third-degree child abuse and was sentenced to five months in jail and 18 months’ probation. When she was released from jail, the respondent violated her probation for consuming alcohol. She was then incarcerated again from July 2021 until October 2021. The respondent was also arrested twice for shoplifting in July 2021 and was reportedly intoxicated during both incidents.
At the conclusion of a termination hearing in spring 2022, the trial court held there was clear and convincing evidence to terminate the respondent’s parental rights under MCL 712A.19b(3)(c)(i) and (j). The respondent appealed that ruling.
In March 2023, the Court of Appeals affirmed the trial court’s decision in a 2-1 opinion. “Respondent’s struggles with substance abuse created a life-threatening emergency to AAB, and respondent was unable to demonstrate to DHHS that she was prepared to safely care for her children going forward,” the Court of Appeals majority said. “Accordingly, the trial court did not clearly err when it concluded that there was clear and convincing evidence that there was a reasonable likelihood the children would be harmed if returned to respondent’s care.” Judge Gleicher dissented, emphasizing the respondent “had taken responsibility for her previous mistakes, blamed only herself, and had successfully engaged in treatment of her alcoholism and substance abuse. … In my view, the termination of mother’s parental rights based on her past conduct was mostly punitive rather than advancing anyone’s best interests. I fear that the destruction of the children’s relationship with their mother will punish them, as well.”
The respondent appealed the Court of Appeals decision to the Michigan Supreme Court (Docket No. 165815). In an October 2023 order, the high court remanded the case to the Court of Appeals “for consideration whether the Grand Traverse Circuit Court clearly erred by concluding that termination of the respondent’s parental rights was in the children’s best interests.”
Another Split Decision
On remand, the Court of Appeals addressed the respondent’s argument that the trial court erred by not considering whether termination was the least restrictive means possible to protect the safety and well-being of the children.
“We disagree and affirm the trial court’s order,” the Court of Appeals majority said.
“Respondent contends that in order to withstand constitutional scrutiny, courts cannot ‘evaluate the benefits of termination in isolation,’ and ‘must consider termination only after concluding these alternatives would less adequately serve the child’s needs,’” the Court of Appeals wrote. “According to respondent, the trial court failed to do so because ‘the children were living safely with their father and had a strong relationship with their mother.’ Contrary to respondent’s arguments, the trial court did consider these factors when terminating respondent’s parental rights, and took the appropriate steps to attempt reunification of the children with respondent. … [D]espite what should have been a wakeup call, respondent continued to deny responsibility and failed to comply with her service plan over the course of three years. We therefore reject the assertion that the trial court failed to properly consider the ‘least restrictive means’ when concluding that the children’s best interests would be served by terminating respondent’s parental rights. DHHS made a good faith effort to achieve reunification by providing respondent access to services and giving her ample opportunities to demonstrate compliance.”
The trial court “did not clearly err when it terminated respondent’s parental rights on the basis of what was in the best interests of the children,” the Court of Appeals majority said. “Although the trial court did not frame the issue as one of ‘least restrictive means’ (it could not have given respondent’s failure to raise the issue in that court), the trial court did consider the issues raised by respondent here - i.e., the placement of the children with the father and respondent’s record of compliance and sobriety - and concluded that in each instance termination was warranted.”
In her dissent, Judge Gleicher said that “nothing has changed” on remand. “The majority’s best-interest evaluation favoring termination, like that of the circuit court, is scripted by mother’s past, flavored by a need to punish rather than to preserve enduring emotional bonds. Reviewed through a best-interest lens, the evidence supports that terminating mother’s rights to her children was unnecessary and contrary to their best interests. Because the children were safely and securely placed in their father’s custody, were bonded with their mother, and mother’s visits with the children were uniformly positive, termination was inappropriate on best interest grounds.”
According to Judge Gleicher, “a preponderance of the evidence demonstrated that mother and the children were strongly bonded, had exceedingly positive visits, and that mother was more than capable of attending to her sons’ emotional and physical needs. The circuit court failed to acknowledge or even attempt to refute powerful evidence supporting that multiple best-interest factors centering on bonding, visiting, and parenting capabilities supported the preservation of mother’s parental rights. This omission constitutes clear error.”
Moreover, “[p]erhaps recognizing that the evidence of mother’s efforts at recovery weighed against termination, the majority simply discounts its importance,” Judge Gleicher said. “The circuit court clearly erred by refusing to recognize and credit mother’s progress in successfully addressing her alcoholism as a fact that served her children’s best interests.”
In addition, the Court of Appeals majority “rejects that the children’s placement with their father mattered because the circuit court allegedly considered that fact,” Judge Gleicher wrote. “Like the circuit court’s analysis of the statutory grounds, its determination that the children’s best interests would be served by termination rested on the past, not the present. … The message is: when placed on the best-interest scale, positive life changes simply cannot overcome past mistakes, regardless of a strong parent-child bond, solid parenting skills, joyful visits, compliance with a case service plan, mental health progress, voluntary rehabilitation efforts, and obvious love and affection shared by parent and child.”
Meanwhile, “there is a larger problem with the majority’s analysis,” Judge Gleicher explained. “Neither the majority nor the circuit court have explained why the boys’ placement with their father weighs in favor of terminating mother’s parental rights. The majority avoids any analysis of this issue at all, retreating behind the circuit court’s findings. … I suggest that MCL 712A.19a(8)(a) embodies a recognition that children should not lose their connections even to imperfect parents so long as the children are safe and well cared for by a relative, including another parent. Placement with relatives can suffice to provide permanency and to keep children safe, while also allowing them to maintain critically important emotional relationships.”
Judge Gleicher concluded, “Judges cannot magically dissolve a child’s loving attachment to a parent, particularly relationships involving children of the ages of AMB and AAB, by simply signing termination orders. That is why placement with relatives weighs against termination. Here, the record contains only the speculation that severing the children’s ties with their mother would serve their best interests. The strong weight of the evidence shows just the opposite, that mother’s continued presence in her sons’ lives benefits them. I would reverse the circuit court and remand for an updated best-interests hearing at which the circuit court would be directed to make specific findings regarding the benefits (or detriments) of less restrictive alternatives than termination.”
‘One Less Parent’
According to an experienced Lansing child-welfare litigator, the Bates decisions are frustrating because situations like this are “routinely addressed” through custody orders.
“Give dad sole physical/legal custody and give mom supervised parenting time, or even suspended if she relapses again,” the attorney commented. “If we terminated rights in all of those cases, there would be magnitudes of more terminations. Why is this particular mother so egregious that she deserves to permanently lose her children? Why don’t her children get the opportunity to maintain that relationship when so many other children in the same circumstance do? And again, how do these children actually benefit from termination? They aren’t going to be part of a new family; they just have one less parent.”
In fact, “I think [Judge] Gleicher has inadvertently highlighted a fact which only parents’ attorneys seem to realize: that termination is regularly used as a method of punishment rather than child protection,” the attorney said. “It is used as a moral judgment against parents who are disproportionately poor BIPOC [Black, Indigenous and other people of color]. It is the state’s way of punishing people for mental health issues, for substance abuse issues, for attitude issues. The DHHS, the prosecutors who represent them, the LGALs [lawyer guardian ad litems] who blindly defer to them, and the courts that listen only to them all fall into this trap of believing that a parents’ sins inexorably make them unfit to be parents. It frustrates me that powerful dissents such as [Judge] Gleicher’s here … are swan songs of great jurists who could not make their colleagues see the light on how broken this system is.”
Oral Arguments In May 2024
In a January 31, 2024 order, the Michigan Supreme Court indicated it is again considering the respondent’s application for leave to appeal in Bates.
“We direct the Clerk to schedule oral argument on the application,” the high court said in its order. “The parties shall file supplemental briefs … addressing whether, when a child is in the care of a relative, the trial court is required to consider and eliminate available alternative remedies short of termination as a matter of: (1) constitutional due process …; or (2) statute; and (3) whether the trial court erred in this case. The Clerk of the Court is to schedule the case for argument at the May 2024 session …. The State Bar of Michigan Family Law and Children’s Law Sections, the Legal Services Association 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 are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.”
In the order, Justice Brian K. Zahra and Justice David F. Viviano said they would deny leave to appeal.
Stay with the Speaker Law Blog for updates on the Bates case.
