The Michigan Court of Appeals released its opinion regarding In re Doering, unpublished per curiam opinion of the Court of Appeals decided July 16, 2020 (Docket No. 351631) and reversed a Monroe County trial judge’s decision to terminate a father’s parental rights before he had an opportunity to rectify conditions to have his child in his care. Congratulations to our appellate attorney Joel D. Kershaw for securing this victory for his client.
The father had not yet established his paternity to the child when CPS filed a petition to take jurisdiction over the family in December 2018. The mother had already died, and the father had been incarcerated the last 10 months in state prison. A DNA test revealed his genetic paternity and the trial court declared he was the legal father. Immediately after paternity was established, DHHS filed a petition seeking immediate termination of his parental rights in lieu of providing services to the father and a reasonable opportunity to be united with his child. DHHS alleged that the father could not provide care for the child because he would be incarcerated in prison until at least February 2021, that he had a history of domestic violence, and that he has a prior CPS history involving other children. The father requested from the judge that DHHS provide a case service plan so he can work towards bringing his child into his care. However, the trial court agreed with DHHS and terminated the father’s parental rights. He then filed this appeal as of right.
The Michigan Court of Appeals acknowledged that there are situations where the trial court can terminate parental rights immediately instead of requiring DHHS to make reasonable efforts to provide services to parents and reunify the family. However, to do so, the trial court MUST determine that the parent has subjected the child to one or more of the aggravating circumstances under MCL 722.638:
- The court “determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home, has abused the child or a sibling of the child and the abuse included… [a]bandonment of a young child, [c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate, [b]attering, torture, or other severe physical abuse, [l]oss or serious impairment of an organ or limb, [l]ife threatening injury, [or] [m]urder or attempted murder.” MCL 722.638(1)(a).
- The court “determines that there is risk of harm, child abuse, or child neglect to the child” and the parent’s rights to another child were INVOLUNTARILY terminated in Michigan or another state, and “the parent has failed to rectify the conditions that led to the prior termination of parental rights”. MCL 722.638(1)(b)(i).
- The court “determines that there is risk of harm, child abuse, or child neglect to the child”, the parent’s rights to another child were VOLUNTARILY terminated in Michigan or another state, “the parent has failed to rectify the conditions that led to the prior termination of parental rights”, and the prior termination proceeding was based on abuse that included… [a]bandonment of a young child, [c]riminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate, [b]attering, torture, or other severe physical abuse, [l]oss or serious impairment of an organ or limb, [l]ife threatening injury, [m]urder or attempted murder, [v]oluntary manslaughter, [or] [a]iding and abetting, attempting to commit, conspiring to commit, or soliciting murder or voluntary manslaughter”. MCL 722.638(1)(b)(ii).
These aggravating circumstances can apply whether the parent is the suspected perpetrator or the parent is suspected of placing the child at an unreasonable risk of harm due to the parent’s failure to take reasonable steps to intervene to eliminate that risk. MCL 722.638(2).
In this case, the trial court did NOT find that ANY of these aggravating circumstances applied to this situation. DHHS was statutorily REQUIRED to make reasonable efforts towards reunification. As a last ditch attempt to win their case, DHHS argued that the father was offered a case service plan to another child in 2012 so that constituted reasonable efforts now. However, DHHS did not allege in their petition (and the trial court did not find) that any of the services offered to the father in 2012 constituted “reasonable efforts” with the child in 2018 to prevent removal from his care. As a result, termination of parental rights was inappropriate in this case because no aggravated circumstances were found and DHHS made no reasonable efforts at reunification between the father and this child.
What about the fact that the father was (and is) still incarcerated? Proof that a parent is locked up is not an aggravated circumstance under MCL 722.638. According to In re Mason, 486 Mich 142; 782 NW2d 747 (2010), the Michigan Supreme Court determined that DHHS still has a duty to make reasonable efforts at reunification with an incarcerated parent. On the contrary, DHHS must still create a case service plan and make contact with the jail or prison to facilitate the parent’s access to these services. In this case, there was no evidence that DHHS reached out to the father’s prison to inquire about any kinds of services that could benefit him. They likely did not pursue this inquiry because DHHS wrongfully believed that they had a basis to terminate parental rights immediately after adjudication.
With the decision to terminate parental rights reversed, the case is now remanded back to the trial court in Monroe County where the judge must either order that the father is entitled to a case service plan and reasonable efforts by DHHS, or the judge must articulate that one of the aggravating circumstances under MCL 722.638 exists to justify termination of parental rights.
Termination of parental rights is far more severe than simply losing custody of a child to another parent or third party. When you lose custody, your parental rights are still intact and you always have the option to petition the court in the future to get custody back. When your parental rights are terminated, it is final and forever. You could never go back to court in the future and “get your rights back” after they are terminated, even if your living situation has substantially improved. If the rights of all parents to a child are terminated, it frees up that child to be adopted by another family and that parent will not have any legal right to contact whatsoever.
If you are facing child protective proceedings with DHHS, you need a skilled lawyer in your corner to aggressively protect your parental rights and hold both CPS and the judge to their responsibilities under statute. Our law firm has the knowledge and the ability to defend your rights in both the trial courts and the appellate courts. When you need legal representation, contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
