Trial Court Did Not Address Relative Placement: Termination of Parental Rights Vacated

Although a trial court properly terminated the parental rights of a mother and a father under MCL 712A.19b(3)(c)(i) and (g), the termination of the mother’s rights under a best interests analysis must be vacated because the trial court did not address the child’s placement with a relative, the Michigan Court of Appeals recently ruled.

“We conclude that the trial court did not clearly err by finding that statutory bases for termination were proven by clear and convincing evidence,” the Court of Appeals wrote in In re Sanchez (Docket Nos. 341113 and 342062). However, because the trial court did not explicitly address the child’s placement with a relative as required by In re Mason, 486 Mich 142 (2010), and In re Olive/Metts, 297 Mich App 35 (2012), “we vacate the trial court’s best-interests ruling … and remand for reconsideration of the issue,” the Court said.

Judges Patrick M. Meter and Kirsten Frank Kelly joined the per curiam unpublished opinion.

Judge Elizabeth L. Gleicher concurred in part and dissented in part. According to Gleicher, the matter should have been remanded for a review of both the father’s and the mother’s efforts at placing the child with a relative.

Child Removed From Home

The respondents are the parents of ES, who was removed from the home by the Michigan Department of Health & Human Services (DHHS) in 2015 after the respondents were arrested on drug charges. The trial court ultimately took jurisdiction over ES and he was placed with his maternal grandmother, Gail Black.

The respondent-father repeatedly requested that ES’s placement be changed to the home of the boy’s paternal grandmother, Anna Rios, who had been the primary caregiver before the DHHS removed the boy from the home. These requests were reportedly denied because the foster care worker maintained that ES’s placement was appropriate and the child’s lawyer-guardian ad litem advocated against moving the boy. In addition, DHHS had determined that Rios had a drug-related conviction and, as a result, concluded that she would never be eligible for placement. During the next several years, Rios was permitted to visit with ES and she did so regularly.

At first, the respondents were cooperating with the DHHS case-service plan. But after three show-cause hearings were held because the respondent-mother failed to abide by the plan, DHHS petitioned to terminate both of the respondents’ parental rights. At a termination hearing, the trial court indicated that although DHHS had established the statutory bases for termination, the best interests requirement had not been met. The trial court warned the respondents that it would continue to monitor the case.

The respondent-mother then began missing drug screens, among other things. The respondent-father also failed to keep caseworkers informed of his progress in trying to secure an earlier release from prison by attending “boot camp.” As a result of noncompliance with the case-service plan, DHHS requested termination of both parents’ rights. Finding it was in the boy’s best interests, the trial court terminated the parental rights of both the respondents, citing MCL 712A.19b(3)(c)(i) and (g).

Statutory & Best Interests Arguments

On appeal, the respondent-mother first argued the trial court erred by finding that DHHS established grounds for termination of her parental rights under MCL 712A.19b(3)(c)(i) and (g).

The Court of Appeals disagreed with the respondent-mother. “Respondent-mother argues that the trial court erred by terminating her parental rights because the only issue remaining for her was substance abuse and she was addressing it,” the Court wrote. “However, respondent-mother continued having positive drug tests and missing drug screens. ... She subsequently revoked her consent for DHHS to receive information about her substance-abuse treatment and testing. … Given her failure to participate in services and drug screens, there was no reasonable likelihood that she would rectify her issues within a reasonable time. Indeed, respondent-mother had ample time to rectify the conditions that resulted in the court taking jurisdiction; termination did not take place until nearly two and one-half years after removal and more than two years after services were recommended.”

Because the trial court did not clearly err when it found that DHHS had established MCL 712A.19b(3)(c)(i) by clear and convincing evidence, “we decline to consider whether DHHS established the remaining ground for termination,” the Court of Appeals concluded.

The respondent-mother also argued, among other things, that because ES was placed with a relative, the trial court clearly erred when it did not expressly address the boy’s placement at the time of the termination hearing.

The Court of Appeals agreed with the respondent-mother. “The trial court did not expressly address the fact that ES was residing with a maternal relative,” the Court said. “The record supports a finding that ES was doing well at his maternal grandmother’s house. ES’s needs were being met, and he was current on all medical and dental care. The foster-care worker reported that it would be in ES’s best interests ‘to have permanence and stability and to be adopted by his grandmother.’ However, the trial court neither mentioned that ES’s placement with his grandmother was a factor that weighed against termination nor discussed the standard set forth in In re Mason.”

Because the trial court was required to explicitly address the child’s placement with a relative at the time of the termination hearing, pursuant to In re Olive/Metts, the Court of Appeals held that the trial court clearly erred by failing to do so. “Therefore, we are required to vacate the trial court’s best-interests analysis as applied to respondent-mother and remand this case to the trial court for further findings regarding best-interests.”

Concurring/Dissenting Opinion

In a separate opinion, Judge Gleicher agreed with the majority’s analysis regarding the respondent-mother. She concurred that the case had to be remanded because the trial court did not consider the boy’s placement with his maternal grandmother.

Judge Gleicher, however, also dissented in part. Her dissent focused on the respondent-father.

“I believe that respondent-father’s efforts to secure placement with Rios should have been considered both as a legal basis to preserve his parental rights and as ‘an explicit factor … in determining whether termination was in the child[]’s best interests,’” Judge Gleicher wrote, citing In re Mason. “Had the DHHS actually supported its decision to disqualify Rios, respondent-father would have had a reason to champion ES’s placement with Black. Absent evidence of Rios’s disqualification, the trial court was bound to credit respondent-father’s efforts to secure placement with Rios when assessing whether termination was legally justified and whether it served ES’s best interests. I would remand for both reviews.”

According to Judge Gleicher, placement with a relative has a “dual impact” in termination of parental rights proceedings. “It potentially negates the legal bases for depriving a parent of his constitutional right to the custody of his child,” she said, “and advances the interest of the child in preserving a relationship with the parent and the parent’s family. …When a child is placed within a loving extended family, the State’s interest in permanently disrupting the child’s relationship with an absent parent surely fades. Our Legislature explicitly adopted this philosophy when it recently amended MCL 712A.19a to mandate that courts developing permanency plans determine whether a child ‘may be permanently placed with a fit and willing relative.’ … The trial court should have considered ES’s placement with Black when it assessed the statutory grounds invoked by petitioner to terminate respondent-father’s parental rights and when it considered ES’s best interests.”

Moreover, the record supported that DHHS “never attempted to vet Rios as ES’s caregiver, likely because it was easier to simply rely on the stable status quo: placement with Black,” Judge Gleicher observed. “And while I can understand this choice, I interpret DHHS policy and the law as requiring background studies for relatives identified by both parents. …There is no evidence that the DHHS fulfilled this obligation. Yet despite the hole in the record created by DHHS’s failure to follow its own rules, the trial court uncritically adopted the DHHS’s claims that Rios was disqualified from placement and that respondent-father’s endeavor to place ES with her could be ignored.”

Judge Gleicher explained that, pursuant to In re Mason, when considering an incarcerated parent’s effort to achieve relative placement, the issue is not whether a relative actually succeeded in obtaining custody, but whether the respondent made a genuine effort to secure relative placement, thereby providing proper care and custody. “Adopting a rule that bestows the benefit of relative-placement efforts only on the respondent with the relative selected by the DHHS is dangerous and counterproductive, potentially igniting legal contests between caring kin, or a withdrawal of willing cooperation,” the judge wrote. “The relevant question is whether the parent tried, in good faith, to provide relative care. Penalizing a parent for the DHHS’s choice among otherwise qualified relatives contravenes the spirit of Mason ….”

Judge Gleicher continued by asking, “Does a presumption emerge that relative placement is in the child’s best interests, given the Legislature’s commitment to shielding parents who arrange for relative placement against the termination of their parental rights?” According to the judge, “Applying the language of Mason in this manner makes sense to me, as it fully comports with the Legislature’s general approach and shifts the burden to the petitioner to explain why termination is required despite relative placement. I would hold the DHHS to this obligation on remand.”

In conclusion, Judge Gleicher said that, on remand, the trial court should consider whether the respondent-father’s approach to the child’s care and custody supplied a best-interests factor weighing against termination, for the same reasons that it weighed against termination in the respondent-mother’s case.

“Our state’s child welfare system recognizes and appreciates the importance of the emotional bond between a parent and his child,” Judge Gleicher wrote. “Termination of parental rights may be denied on this basis standing alone. Indeed, the trial court initially refused to terminate respondents’ parental rights, in part because ES was placed with relatives and respondents had worked hard to retain their bonds with their child. By all accounts, ES’s placement with Black is secure and beneficial for the child. Before severing ES’s bond with his parents, I would require the circuit court to determine whether maintaining the bond, as contemplated in Mason and Olive/Metts, would strengthen ES’s emotional ties to his extended family and enhance his future stability. I would remand for this purpose, as well.”