Although the trial court properly terminated the respondent-mother’s parental rights because at least one of the statutory termination factors was met, the trial court made “inappropriate references” to the fact that domestic violence had occurred in the home, the Michigan Court of Appeals has ruled.

Domestic violence “may not be relied upon as a basis for terminating parental rights,” the Court of Appeals emphasized in In re Jackisch, Minors (Docket No. 357001), calling out the Genesee County Circuit Court for referencing domestic violence during the proceedings.

The record in the case provided “nothing more than vague references” to domestic violence, the Court of Appeals said. While the record clearly showed the respondent was a victim of domestic violence, “it contain[ed] nothing beyond hints or suggestions that she may also have been a perpetrator. Hints and suggestions are not enough.”

But while domestic violence cannot be a basis for terminating parental rights, the Court of Appeals agreed that other evidence in the case clearly supported the need for termination under MCL 712A.19b.

Court of Appeals Judges Amy Ronayne Krause, Jane E. Markey and Douglas B. Shapiro were on the panel that issued the published and binding opinion.

The Speaker Law Firm applauds the Jackisch panel’s denouncement of the “anticipatory failure to protect” concept. For many years, Lansing appellate attorney Liisa Speaker has argued against this concept - that is, the expectation that a mother who is the victim of domestic violence will fail to protect her children from domestic violence because she could not protect herself.

“Logically, anticipating something that has not yet happened is not current, but future,” Liisa wrote in her book, Kids Caught In The Middle. “The trial judge must find a current basis to take jurisdiction. Then the trial judge can terminate parental rights if he or she anticipates the parent will neglect or abuse the child based on past neglect or abuse.”

Background

In March 2017, Child Protective Services (CPS) filed a petition to remove the respondent’s children from her care. Among other things, the petition alleged: 1) the respondent and her family were living in a relative’s basement; 2) the children were unkept and dirty; 3) the respondent was not taking care of the children’s medical needs; and 4) there was a “substantiated allegation” that the respondent had committed domestic violence against one of the children. The petition was ultimately dismissed by the Department of Health and Human Services (DHHS).

CPS filed a second petition in February 2018. It reiterated the allegations in the first petition and also expanded upon the medical neglect concerns. Among other things, the petition alleged: 1) drugs and drug paraphernalia were observed to be within reach of the children; 2) the respondent’s jaw was reportedly broken by the children’s father and the two had engaged in physical altercations with each other; 3) the respondent kept a gun “in a hole in the couch” where it was accessible to the children. The Genesee County Circuit Court authorized this second petition and the children were placed in separate foster homes.

Thereafter, the trial court established a case service plan. Throughout the proceedings, the respondent participated in several of the services but failed to follow through with others. For example, she missed dozens of parenting time visits, frequently asked to end those visits early, had difficulty disciplining the children and struggled to keep the children engaged.

The trial court ultimately terminated the respondent’s parental rights. In its decision, the trial court said:

“[T]he Court finds that [the respondent] failed to adequately follow and comply with, complete, and/or benefit from the services and elements of the treatment plan and, thus, was unable to rectify the barriers that brought the children into care over three years ago. In particular, progress that [the respondent] made toward rectifying the conditions that led to the children’s removal still failed to adequately address the main barriers that her mental health, parenting skills, and domestic violence posed to the children’s care. For instance, her interactions with the children and choices put the children at risk as she struggled with recognizing and meeting their basic and special needs. Furthermore, [the respondent] did not show enough that she can provide a long-term, safe, stable housing environment for the children within a reasonable amount of time. In addition, there was no indication that [respondent] adequately benefitted from any of these services, satisfactorily addressed the issues that caused the children’s removal, or showed sufficient progress toward demonstrating her ability to care for the children’s extensive special needs as she continued to be overwhelmed and struggled with her parenting all three children and understanding their respective cues. Moreover, [the respondent] has unsuccessfully participated in several domestic violence classes, had a long history of engaging in domestic violence, and even commented at one time that she was in an unsafe environment/relationship with her then fiancé (now husband) [MF].”

The trial court found that MCL 712A.19(b)(3)(c)(i), (g) and (j) were satisfied by clear and convincing evidence. In particular, the trial court referenced: 1) the respondent’s lack of parenting abilities; 2) the children’s need for permanency, stability, finality and consistency; 3) the advantages of the respective foster homes over the respondent’s home; 4) the history of domestic violence; 5) the lack of compliance with the case service plan; 6) the children’s special needs, including medical needs; 7) the length of time the children had been in foster care; 8) the children’s well-being; 9) the likelihood of adoption by the respective foster parents; and 10) the fact that the caseworkers, the guardian ad litem and experts had recommended termination.

The respondent appealed, arguing the evidence did not support a termination of her parental rights.

‘Vague References’

In its analysis, the Court of Appeals first pointed out the trial court “erred to the extent it based termination on respondent’s involvement in domestic violence because the record fails to establish that respondent was a perpetrator.”

The Court of Appeals cited In re Plump, 294 Mich App 270 (2011), pointing out that domestic violence should not be relied on as a basis for terminating parental rights. “This is not to say that being a victim of domestic violence necessarily precludes termination of parental rights. To the extent such a victim is also a perpetrator, the commission of domestic violence is an appropriate concern. Similarly, termination may be ‘properly based on the fact that [a] respondent’s own behaviors were directly harming the children or exposing them to harm.’”

According to the Court of Appeals, the record in this case offered only “vague references” to domestic violence. “The critical question is who is the abuser (or abusers), and without that information, mere references to domestic violence in the abstract cannot be used to support termination.”

If the petitioner believed the respondent is a perpetrator of domestic violence, “it must say so explicitly and provide evidence in support of that conclusion,” the Court of Appeals explained, emphasizing that the trial court wrongly relied on the respondent being a domestic violence victim.

Termination Appropriate

However, “even striking the trial court’s inappropriate references to domestic violence, we find the record amply supports the trial court’s findings that statutory grounds for termination were established by clear and convincing evidence,” the Court of Appeals said.

Here, the trial court terminated the respondent’s parental rights under MCL 712A.19(3)(c)(i), (g) and (j). Those sections provide:

(3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following: …

(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds…

(i) The 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.             

…

(g) The parent, although, in the court’s discretion, financially able to do so, fails to provide proper care or custody for the child 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.

...

(j) There is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.

Regarding MCL 712A.19(3)(c)(i), “there is no question that more than 182 days had elapsed since the issuance of the initial dispositional order on April 20, 2018, and the termination order issued on March 31, 2021,” the Court of Appeals said. “The children were originally brought into care for, in relevant part, medical neglect and improper supervision. Those issues were never satisfactorily resolved, and the evidence indicated no reasonable likelihood that they would be rectified within a reasonable time.”

As for MCL 712A.19(3)(g), “the children had exceptional behavioral, emotional, and social needs; meanwhile, a psychological evaluation indicated that respondent had a poor prognosis for ever becoming an independent parent,” the Court of Appeals observed. “Therefore, the trial court did not err by finding that respondent could not provide proper supervision to the children and would not be able to do so within a reasonable time given the children’s ages.”

Addressing MCL 712A.19(3)(j), the respondent “showed a consistent pattern of failing to understand, appreciate, and respond appropriately to the medical and mental health needs of herself and her children,” the Court of Appeals explained. “Therefore, the trial court did not err by finding that the condition of medical neglect continued and would not be rectified within a reasonable time given the children’s ages.”

Based on the foregoing, the respondent’s parental rights were properly terminated, the Court of Appeals concluded.