The Courts’ Discretion in Parenting Time Decisions Questioned

While parenting time between the preliminary hearing and adjudication and after the termination petition is filed are controlled by court rules (MCR 3.965(C)(7)(a); MCR 3.977(D) ) and statutes (MCL 712A.13a(13) ; MCL712A.19b(4)), visitation after adjudication is controlled by the court.

Under In re Laster, 303 Mich App 485, 2013, the Court of Appeals held that termination of parental rights, “In the absence of a court rule or statute, the issue of the amount…and conditions of parenting time is left to the sound discretion of the trial court…”  This decision allowed a trial court to deny a parent whose child had been removed from parental care from having parenting time with their child – even during the dispositional phase of the case when the goal of DHHS is to reunify the parent and child.

That is how matters stood until In re Newman, Minors, (Nos. 329063, 329076, unpublished, 9/29/2016), an opinion which put a chink in the armor of the Laster case. Newman was also an appeal of a termination of parental rights. The results, however, were vastly different. The Newman court reversed the trial court decision and remanded the matter back to evaluate the parents, prepare a parent-agency plan, order visitation and continue monitoring in order to properly determine a final disposition.

Of interest is footnote 5, addressing the issue of visitation, which was not argued on appeal and therefore not properly before the court. The court’s discussion, however, is telling.

In the court’s view, “the inability of the department to observe the children and parents together…greatly limited the facts available for the determination of the factual questions before the court, and…greatly increased the likelihood of error as to those questions.”

“Unfortunately,” the Court of Appeals stated “there does not appear to be any case law providing guidance as to when a denial of all services including even supervised visitation is an abuse of discretion, and as noted above, neither the magistrate nor the judge provided any grounds for that denial other than that it had the discretion to do so.”

“If the only test is whether the court has such discretion, see MCL 712A.19b(4), then it would seem that the discretion cannot be abused, i.e. that the discretion is wholly unfettered and unreviewable. It is questionable whether this was the legislature’s intent and whether it comports with due process.”

“In the absence of briefing on the issue, however, we will not explore the issue here other than to note its potential significance. Additionally, we also note that that the problem is compounded by the fact that respondents were apparently not appointed counsel when the initial denial of parenting time occurred.” (emphasis added)

It seems that, with the right set of facts, the issue of a court’s “unfettered and unreviewable” discretion in parenting time decisions is ripe for appeal.