Termination Of Parental Rights Not Supported By Sufficient Evidence
The trial court’s termination of the respondents’ parental rights must be vacated because, among other things, the statutory factors for termination were not supported by clear and convincing evidence, the Michigan Court of Appeals has ruled.
The respondents in In re Lard, Minors (Docket Nos. 364489 and 364490) are the mother and father of three children, one of whom is an adult and not involved in the case. The respondents appealed the St. Joseph County Circuit Court’s termination of their parental rights to their two minor children, KL and JL, under MCL 712A.19b(3)(c)(i), (g) and (j). Those statutory factors are: (c)(i) - conditions leading to the adjudication continue to exist; (g) - failure to provide proper care or custody; and (j) - reasonable likelihood of harm.
On appeal, the respondents challenged the trial court’s decision on various grounds, including:
the respondent-father argued he should be allowed to withdraw a plea because the trial court failed to advise him of his appellate rights as required by MCR 3.971(B)(6).
the respondent-father asserted the trial court failed to hold an initial dispositional hearing and that he was not properly informed of case services.
the respondent-mother claimed the trial court erroneously admitted hearsay evidence to prove new or different circumstances as a basis for termination.
the respondent-mother alleged the trial court mistakenly relied on marijuana use as a basis for termination without any evidence that it put the children at risk of harm.
the respondents challenged the trial court’s order conditioning parenting time on three consecutive clean drug screens.
“On review, we vacate the termination of respondents’ parental rights and remand for further proceedings,” the Court of Appeals held, addressing each of the respondents’ arguments.
Judges Christopher P. Yates, Stephen L. Borrello, and Sima G. Patel were on the panel that issued the unpublished opinion.
Background
The respondents have three children together. Only the minor children, KL and JL, are the subjects of this appeal.
The Department of Health and Human Services (DHHS) filed a petition against the respondents in March 2021. At the time the petition was filed, the respondents were married. They are, however, no longer married. Despite no longer being married, the respondent-mother allowed the respondent-father to live in her home. The respondent-mother currently has a new partner, RL, and the two have one child together (not at issue in this appeal).
The respondent-father tendered a plea of admission to allegations in the DHHS petition pertaining to him - namely, that he was homeless and used methamphetamine. Meanwhile, the petition alleged the respondent-mother used methamphetamine and that neither of the respondents was ensuring that KL and JL attended school. The petition also alleged concerns of domestic violence in the respondent-mother’s home.
The St. Joseph County trial court denied the respondents parenting time, including supervised parenting time, until they submitted three consecutive clean drug screens. After this was accomplished, the respondents began receiving supervised parenting time. Both respondents stopped using methamphetamine during the trial court proceedings. However, the respondents continued to test positive for marijuana use. The respondent-father obtained employment, although there were periods of unemployment during the proceedings. No other incidents of domestic violence were reported between the respondent-mother and RL during the case. The case eventually progressed to the point where the children spent overnight and unsupervised visits with the respondents.
The respondents made “significant progress” during the proceedings, although “new and changed circumstances” also arose. For example, KL allegedly claimed that she was sexually assaulted by RL’s nephew and another individual while in the home during her overnight visits. KL then purportedly withdrew her allegations but later claimed that a friend of RL’s nephew sexually assaulted her. Based on this allegation, the trial court suspended the respondents’ parenting time with KL and JL.
As the case progressed, the conditions of the respondent-mother’s home worsened. In October 2022, everyone living in the home was evicted for nonpayment of rent. Thereafter, the respondent-mother and RL moved into a hotel and the respondent-father slept either at a hotel or in his vehicle.
The DHHS filed a supplemental petition to terminate the respondents’ parental rights in September 2022, pursuant to MCL 712A.19b. The trial court held a hearing and terminated the respondents’ parental rights, finding it was in the children’s best interests to do so. The respondents appealed.
Appeals Court Analysis
On appeal, the Court of Appeals specifically addressed each of the respondents’ arguments.
First, the Court of Appeals rejected the respondent-father’s claim that the trial court did not advise of his appellate rights as required by MCR 3.971(B)(6). “Here, the transcript of respondent-father’s plea establishes that the trial court did not inform respondent-father of appellate rights on the record before entry of his plea. But respondent-father is not entitled to relief on appeal. At most, under MCR 3.971(C), if he was not properly advised of his appellate rights, he would be able to ‘challenge the assumption of jurisdiction’ in his current appeal following termination. In this respect, respondent-father does briefly assert that there was not an adequate factual basis for his plea, but his jurisdictional argument lacks merit.”
According to the Court of Appeals, the trial court adjudicated respondent-father under MCL 712A.2(b)(2). “The trial court’s assumption of jurisdiction under that provision was supported by a preponderance of the evidence because respondent-father’s admissions at the plea hearing established that he was unable to provide adequate housing for his children, and by his own admission, he was engaged in using methamphetamine, which was negatively affecting his children’s welfare. … Therefore, the trial court did not err by exercising jurisdiction under MCL 712A.2(b)(2).”
Second, the Court of Appeals rejected the respondent-father’s claim that the trial court failed to hold an initial dispositional hearing as required by MCR 3.973(C). “Here, the plea transcript reveals that the trial court in fact conducted the initial dispositional hearing immediately after respondent-father’s plea. … Promptly after accepting respondent-father’s plea, the trial court told him that ‘we’re going to enter some orders about what you need to do to get started on the case.’ … After that hearing, in addition to entering an order of adjudication, the trial court entered a written order of disposition memorializing those service requirements for respondent-father and setting the initial review hearing for June 10, 2021. Thus, contrary to respondent-father’s assertion, the trial court held an initial dispositional hearing, which took place immediately after respondent-father entered his plea. … In sum, despite unsigned case-service plans in the record, respondent-father was informed of his obligations under the case-service plans and he participated in some of the services required by those plans. Therefore, on this record, respondent-father has not shown plain error.”
Next, the Court of Appeals turned to the respondent-mother’s assertion that the trial court admitted hearsay statements to establish new or different circumstances as a basis for terminating parental rights. “We agree that the trial court erred by admitting hearsay at the termination hearing,” the appeals court said. Regarding the respondent-mother, “the circumstances leading to the adjudication were substance abuse (especially the use of methamphetamine), domestic violence, and the fact that the children were not going to school. At the termination hearing, however, petitioner cited new and different circumstances, including, most notably, respondents’ alleged failure to protect KL from sexual assault by others. The new and different circumstances also included respondent-mother’s lack of housing, employment issues, and criminality. Because all those circumstances were ‘new and different’ from the circumstances proved at the adjudication, legally admissible evidence was required.”
According to the Court of Appeals, “Admission of hearsay to prove that respondents failed to protect KL from sexual assault is the most glaring and obviously prejudicial error under MCR 3.977(F)(1)(b). … On remand, the trial court must assess any new or different circumstances on the basis of legally admissible evidence.”
Further, “although respondent-father failed to raise this evidentiary issue on appeal, we find it appropriate to exercise our discretion under MCR 7.216(A)(7) to also grant relief to him on that basis,” the Court of Appeals wrote. “The requirements of MCR 3.977(F)(1)(b) apply with equal force to respondent-father, and the plain error in admitting inadmissible evidence to prove new or different circumstances applies equally to him. When entering a plea, he admitted to methamphetamine use and homelessness; he did not admit to failing to protect KL from sexual assault or any of the other new issues identified by petitioner. Thus, we find it just to afford relief to respondent-father on the basis of respondent-mother’s evidentiary argument, despite his attorney’s failure to raise the issue for him on appeal.”
The Court of Appeals then turned to the statutory grounds for terminating the respondents’ parental rights. Specifically, the panel examined the respondent-mother’s claim that the trial court erred when it relied on marijuana use as a basis for termination because no evidence showed the marijuana use put the children at risk of harm. “The trial court’s reasoning is flawed, and it does not support the termination of respondents’ parental rights on the basis of marijuana use,” the Court of Appeals said. “Use of drugs - even illegal drugs - cannot just be assumed to cause harm to children or to warrant the termination of parental rights. … There are certainly cases that ‘dramatically illustrate that substance abuse can cause, or exacerbate, serious parenting deficiencies,’ … but there must be evidence that the drug use is linked to abuse or neglect. That cannot be assumed.”
The trial court “quite significantly disapproved of the use of marijuana by respondents and RL and respondent-mother’s tolerance of RL’s marijuana use,” the Court of Appeals observed. “But missing from the trial court’s analysis is an explanation of how that marijuana use affected respondents’ ability to parent. The trial court emphasized KL’s hearsay statement that she had marijuana while she was living in respondents’ home. But the claim that KL used drugs was a new or different circumstance, meaning that hearsay statements should not have been admitted to prove that point, … and the trial court erred by relying on KL’s purported drug use as a basis to terminate parental rights. … Nothing in the findings of the trial court or the evidence presented indicates that respondents’ use of marijuana - or respondent-mother’s tolerance of RL’s marijuana use before going to work - posed any danger to the children or otherwise affected respondents’ ability to parent. The trial court may personally disapprove of marijuana use, but, without more, that is not a valid basis for terminating parental rights.”
Regarding housing, “the record does not indicate, by clear and convincing evidence, that respondent-mother’s housing was inadequate,” the Court of Appeals said. “Respondent-mother was not homeless after eviction. Instead, while she saved money for new housing, respondent-mother moved into a hotel, where she had a bedroom and a living room. Living in a hotel might seem less than ideal, but there is no indication that the hotel was unsafe, unclean, or otherwise unfit for the children. Housing need not be perfect to be suitable for children.”
Therefore, “we conclude that the trial court’s finding of statutory grounds to terminate respondent-mother’s parental rights is unsupported by clear and convincing evidence,” the Court of Appeals said. “The two most significant issues in the trial court’s analysis were ongoing marijuana use and the lack of safety in respondents’ home stemming from their failure to protect KL from sexual assault. For the reasons we have discussed, the failure-to-protect allegation had to be established by legally admissible evidence, not the hearsay presented at the termination hearing. Further, the trial court erred by injecting its personal views of marijuana and using its disapproval of respondents’ use of marijuana - without linking that use of marijuana to abuse or neglect - as a basis for termination. Other issues - including use of methamphetamine and domestic violence - were resolved. Even though there was evidence that respondent-mother’s hotel housing was not ideal, the evidence does not clearly and convincingly support termination, particularly given the short timeframe between respondent-mother’s eviction and the termination of her rights. If better housing is needed, she should be given time and assistance to obtain it.”
In addition, “the trial court erred in March 2021 - when respondents were still engaged in the use of methamphetamine - by conditioning parenting time on three clean drug screens without making the required determination that parenting time, even if supervised, would have been harmful to the children’s lives, physical health, or mental well-being,” the Court of Appeals held. “Similarly, in September 2022, the trial court erred by completely suspending parenting time following KL’s allegations of sexual assault by someone in respondent-mother’s home. … Even if suspension of parenting time with KL was warranted, it does not follow that JL also should have been deprived of parenting time. In short, the trial court failed to make the appropriate findings to warrant suspension of parenting time in March 2021 or in September 2022. On remand, the trial court shall adhere to MCL 712A.13a(13) and MCL 712A.18(1)(p) before denying respondents parenting time.”
Accordingly, the Court of Appeals vacated the trial court’s decision and remanded the case for further proceedings.
