Termination of Parental Rights Based on Parent as a Domestic Violence Victim

Under In re Plump, 294 Mich App 270, 273; 817 NW2d 119 (2011), a parent’s parental rights cannot “be terminated solely because he or she was a victim of domestic violence.” However, recently the Court of Appeals decided in In re Matter of Burton (Case No. 313448) in an unpublished decision that a mother’s parental rights were properly terminated because she exposed the children to the father’s domestic violence and the criminal activities. The court compared the case to Plump, stating that in that case the court had upheld termination under MCL 712A.19b(3)(c)(i) (“conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child’s age”) where the children had been exposed to domestic violence and exposed them to “drug use and unsafe living conditions.” The court also found that two other bases for termination were proper: MCL 712A.19b(3)(g) (“the parent, without regard to intent, fails to provide proper care or custody for the [children] and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age”) and MCL 712A.19b(3)(j) (“[t]here is a reasonable likelihood, based on the conduct or capacity of the parent, that the [children] will be harmed if he or she is returned to the home of the parent”). Under these bases, the court again noted that the father “posed a substantial risk to the children” and held that the mother, by failing to end her relationship with the father, exposed them to activities that satisfied the statutory requirements.

In an impassioned dissent, Judge Krause argued that the majority was upholding a termination of parental rights solely because the mother was a victim of domestic violence. Her words echoed her concurrence in In re Sehy, unpublished per curiam opinion of Court of Appeals, issued August 14, 2012 (Docket 306370 & 306371). There, she noted that the effect of domestic violence on the children is proper to view for termination cases, but that in Sehy, there were only generalized, presumed effects on the children. She argued that there should have been affirmative proof offered by the state to prove the effect on the children. In Burton, Judge Krause argued in her dissent that this case was distinguishable from Plump because in Plump the terminated parent was using drugs herself and was maintaining the home in improper conditions in addition to having a relationship with a person who had not only abused her, but had directly abused the children. In Burton, the father had never abused the children and only the father engaged in criminal activities. Judge Krause noted that “the only concern upon which termination was based, was her husband’s infliction of violence upon [her].” Judge Krause argued that the direct impact on the children is what should be considered. For these reasons, along with other bases of objection, Judge Krause stated that she would have sent the case back to the Trial Court for reconsideration.