The Michigan Supreme Court is considering whether to hear the case of a mother whose parental rights were terminated after the trial court agreed with the petitioning agency that she had subjected her children to “aggravated circumstances” under MCL 712A.19a(2).

The recent Michigan Supreme Court order in In re Smith-Taylor, Minors (Docket No. 163725) directs the Michigan Department of Health and Human Services (DHHS) to answer the respondent-mother’s application for leave to appeal.

The high court’s order instructs the DHHS to address the following questions:

• whether the record supported a finding that “[t]here is a judicial determination that the parent has subjected the child to aggravated circumstances” under MCL 712A.19a(2).

• whether the DHHS satisfied its obligation to make “reasonable efforts” to reunify the family under MCL 712A.19a(2), despite the fact that DHHS did not provide the respondent with a case service plan.

• whether the Michigan Court of Appeals correctly ruled that the respondent had to object to the lack of services provided in order to preserve the “reasonable efforts” issue, even though the DHHS did not provide a case plan that set forth the services.

COA Decision

The children were removed from the respondent’s care after an incident of domestic violence with their father and after the respondent’s mental health episode that required police assistance. While the respondent was receiving mental health treatment, the children were in their father’s care and, during that time, one of the children sustained serious injuries. At some point thereafter, the respondent reportedly indicated that she would not separate from the father, despite the alleged child abuse.

The DHHS filed a petition to terminate the respondent’s parental rights. The agency did not prepare a case service plan in light of the alleged “aggravated circumstances” under MCL 712A.19a(2).

The respondent and the father pleaded no contest during a combined adjudicative and dispositional hearing, thereby allowing the Wayne County Circuit Court to assume jurisdiction over the children. The trial court ultimately terminated the respondent’s parental rights on February 26, 2021. The respondent appealed.

The Court of Appeals affirmed the trial court’s decision in a published and binding opinion (Docket No. 356585) issued in October 2021. Judges Kirsten Frank Kelly, Mark J. Cavanagh and James Robert Redford agreed the trial court did not err by:

• combining the adjudicative and dispositional phases of the termination hearing.

• terminating the respondent’s parental rights without providing reasonable efforts.

• failing to inform the respondent of her right to in-person court hearings.

Accordingly, the Court of Appeals concluded that termination of the respondent’s parental rights was in the best interests of the children.

In its analysis, the Court of Appeals said the trial court properly combined the adjudication phase and the dispositional hearing, noting there was a “clear differentiation” between the two phases. As such, the trial court “employed the proper procedure and respondent’s due process rights were not violated.”

The Court of Appeals also rejected the respondent’s assertion that the DHHS failed to prove statutory grounds for termination. The trial court did not err in finding that the respondent “had not provided proper care and custody for the children and would not be able to within a reasonable time.”

Moreover, the Court of Appeals held that termination was in the children’s best interests. The respondent’s “failure to significantly address her mental health, her erratic behavior throughout the proceedings, her continued relationship with the father, and her failure to acknowledge the severity of [one child’s] injuries demonstrated that she did not have the ability to properly care for the children ….”

The Court of Appeals further rejected the respondent’s argument that the trial court erred by not informing her of the right to in-person court hearings. Specifically, the appeals court noted the respondent consented to video conferencing, did not demonstrate the trial court was required to articulate her right to in-person hearings and failed to present “any argument as to how the outcome of the proceedings would have been different had they taken place in-person.”

‘Aggravated Circumstances’

A particularly noteworthy aspect of the case is the respondent’s argument that aggravated circumstances did not exist because she did not personally commit the child abuse and she was not present when the abuse occurred.

The Court of Appeals rejected this argument, emphasizing the respondent “allowed the father to reside with the children and that he committed severe physical abuse upon” one of them. In addition, the appeals court pointed out the respondent “subjected her children to an unreasonable risk of harm by her failure to eliminate the possible abuse of the children in light of her knowledge that the father’s parental rights to other children had been terminated.”

In her book, Kids Caught In The Middle, Lansing appellate attorney Liisa Speaker addresses the continuing problem of the DHHS alleging – and Michigan trial judges finding – that “aggravated circumstances” exist in termination cases, although the statutory definition of that term is not satisfied.

“Immediate termination is only available if the parent’s conduct amounted to ‘aggravated circumstances,’ such as murdering another child, sexual abuse by penetration, severely injuring a child or torturing a child,” Liisa explains in her book. “The court rules say the trial judge must make a finding within sixty days after the child is removed from the home that either [Child Protective Services] made reasonable efforts to keep the child in the home or that those reasonable efforts are not required due to aggravated circumstances. Unfortunately, many times DHHS, the prosecutor and the trial judge plow forward as if the case had aggravated circumstances without ever going through the process to make the required findings.”

Liisa also notes in her book that the termination court forms used by trial judges “have a line item where the judge can ‘check the box’ if the judge finds there are aggravated circumstances and state the findings that support the identification.” However, Michigan trial judges “are not properly completing the forms as it pertains to aggravated circumstances” and unfortunately are allowing DHHS “to move directly to termination of a parent’s rights without providing any services.”

If the Michigan Supreme Court ultimately decides the case of In re Smith-Taylor, Minors, the ruling will hopefully shed some much-needed light on the “aggravated circumstances” issue in termination cases.