JUVENILE CASELAW UPDATE

BY KELLY WARD (VAN BUREN)

DELINQUENCY
 
NONE
 
CHILD PROTECTIVE PROCEEDINGS
 
In re O. O. CLAUDIO-PEREZ, Minor, (June 7, 2024), SC: 165711 COA: 360356, Kalamazoo Circuit Court, Family Division, 18-000181-NA
 
Issues:
Termination under MCL 712A.19b(3)(c)(i), (c)(ii), and (j), failure to make reasonable efforts toward reunification under MCL 712A.19a(2), In re Hicks, 500 Mich 79, 85 (2017).  What constitutes plain error: In re Utrera, 281 Mich App 1, 8-9 (2008), People v Carines, 460 Mich 750, 763 (1999), In re Pederson, 331 Mich App 445, 463 (2020), People v Randolph, 502 Mich 1, 10 (2018)(“seriously affected the fairness, integrity or public reputation of judicial proceedings . . . .”).
 
Summary:
In lieu of granting leave to appeal, the Supreme Court reversed the judgment of the Court of Appeals and remanded to the Kalamazoo Circuit Court for further proceedings.  Respondent-mother applied for leave to appeal the trial court’s order terminating her parental rights to her minor child, OOCP, under MCL 712A.19b(3)(c)(i), (c)(ii), and (j).
 
DHHS “has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights.” In re Hicks, 500 Mich 79, 85 (2017), citing MCL 712A.18f(3)(b) and (c); MCL 712A.19a(2). DHHS failed to make reasonable efforts toward reunification. DHHS determined that mother’s lack of medical knowledge was an obstacle to reunification with her medically fragile child.  The Department failed to provide the mother with any training or resources to overcome this obstacle. The trial court’s holding that DHHS made reasonable efforts toward reunification constitutes plain error because DHHS has an affirmative duty to make reasonable efforts to address the barriers to reunification.

FOR PUBLICATION

In re L. J. LOMBARD, Minor, (May 30, 2024), No. 367714, Wayne Circuit Court, Family Division, LC No. 22-001595-NA
 
Issues:
Termination of parental rights under MCL 712A.19b(3)(a)1 (child deserted), (c)(i) (conditions that led to adjudication continue to exist), (g) (failure to provide proper care or custody), and (j) (reasonable likelihood of harm if returned to parent). Best interest of the minor child, MCL 712A.19b(5). Abuse of discretion in the trial court’s best-interests determination, including a blanket or general policy disfavoring guardianship based on age of the child as opposed to an individualized determination regarding the child’s best interests.
 
Summary:
The trial court’s findings and conclusions regarding statutory grounds for termination are affirmed. The trial court’s best-interests determination finding against guardianship is reversed and remanded.
When determining whether termination is in the best interest of a child, the fact that a child is in the care of a relative at the time of the termination hearing is an “explicit factor” that the trial court must consider. In re Olive/Metts, 297 Mich App at 43, quoting In re Mason, 486 Mich 142, 164 (2010). Under appropriate conditions, a trial court may forego termination and instead place a child in a guardianship. See MCL 712A.19a(8) and (9). A guardianship “allows the child to keep a relationship with the parent when placement with the parent is not possible.” See also In re COH, 495 Mich at 201-202 (interpreting MCL 712A.19c(2) (guardianship after termination) and holding that “the statute simply requires the court to base its decision whether to appoint a guardian on ‘the child’s best interest.’”). However, a trial court must refrain from implementing a blanket policy disfavoring guardianships and instead must make an individualized determination regarding a child’s best interests. In re Timon, 501 Mich 867 (2017). The trial court adopted the referee’s findings and ultimate conclusion that terminating respondent’s parental rights was in LJL’s best interests. In reaching this conclusion, the referee stated that a guardianship was “not an option.” He explained that the trial court “generally frowns upon guardianships for children under 10 years old . . .” and opined that guardianships “are the furthest thing in the world from permanency or stability.” He then raised concern over other guardians’ propensity to terminate guardianships during children’s teenage years. The trial court abused its discretion by adopting the referee’s best-interests determination and the matter was remanded for the trial court to make an individualized determination regarding LJL’s best interests without regard to a generalized policy disfavoring guardianship. The trial court should consider whether guardianship is appropriate for the specific child at the heart of the case.
 
UNPUBLISHED
 
In re TOMS, Minor, (May 30, 2024), No. 36855, St. Clair Circuit Court, Family Division, LC No. 23-000169-NA
 
Issues:
Termination under MCL 712A.19b(3)(b)(ii); Failure to protect a child from abuse by another individual; In re LaFrance; Best interests of the child; MCL 712A.19b(5); In re White; Relative placement.
 
Summary:
Holding that § (b)(ii) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-mother’s parental rights. Her rights were terminated on the basis of her failure to protect the young child from her abusive boyfriend. On appeal, the court rejected her argument that a statutory ground for termination was not met because (1) there was no evidence that the child’s injuries were nonaccidental, (2) she did not have the opportunity to prevent injury to the child, and (3) she no longer had any contact with the boyfriend. “Despite respondent’s contention otherwise, the record supports that [the child’s] injuries were nonaccidental.” In addition, she “ignored her family members’ repeated warnings about the danger” the boyfriend presented to the child. Further, even accepting that she left the boyfriend, her child “continued to face a risk of harm.” The court also rejected her claim that termination was not in the child’s best interests because they had a strong bond and there was no evidence that she lacked parenting skills. The trial court examined their bond, her parenting ability, the child’s need for stability, and the advantages of the child’s foster home over her home. Although they had a bond, this bond was outweighed by her poor parenting skills, which were evident from the record. The evidence also demonstrated that the child’s “foster home had advantages over respondent’s home. [The child] did well in his placement with respondent’s mother.”
  
UNPUBLISHED
 
In re JOHNSON, Minor, (August 22, 2024), No. 369040, Washtenaw Circuit Court, Family Division, LC No. 18-000124-NA 
 
Issues:
Termination under § 19b(3)(h); Effect of incarceration; In re Mason; In re Baham; Best interests of the child; MCL 712A.19b(5); In re LaFrance; Foster care; In re Frey; A parent’s right to control the care & custody of his or her child; In re Sanders; Appointment of a guardian; In re TK, 306 Mich App at 705

Summary:
Holding that § (h) was met, and that termination was in the child’s best interests, the court affirmed termination of respondent-father’s parental rights. His rights were terminated on the basis of his incarceration. On appeal, the court rejected his argument that a statutory ground for termination was not met. The DHHS “presented clear and convincing evidence that respondent would be incarcerated for more than two years; that [the child] would not be in a normal home for that time; that respondent did not take steps to plan for, support, or arrange for [the child’s] care during his incarceration; and that respondent would be unable to take care or custody of” the child within a reasonable time in light of the child’s age. The court also rejected his claim that termination was not in the child’s best interests. The trial court “considered a guardianship in lieu of termination and eliminated it as a possibility, ultimately deciding that a guardianship was not in” the child’s best interests. “Further, that the trial court rejected this alternative does not mean that the trial court deprived respondent of his due-process rights.” The trial court also did not err “by deciding that termination of respondent’s parental rights was in” the child’s best interests rather than a guardianship. It also “considered the maternal aunt’s custody of [the child] as a potential reason to allow a guardianship rather than termination, until it became clear that the maternal aunt did not wish to be” the guardian. Finally, the trial court observed that the child “would be seven years old or older if respondent was released from prison in 2025, and respondent would need additional time to establish a home and income to support” the child thereafter. It concluded that it would be very traumatic for the child “to be reunited with respondent at that time.”
 
FOR PUBLICATION

In re ERNSBERGER, Minors, (July 18, 2024), No. 369225, Branch Circuit Court Family Division LC No. 17-005547-NA

Issues:
Respondent appeals by right the trial court order terminating her parental rights to her minor children, AE and EE, under MCL 712A.19b(3)(f).

Summary:
Reverse and remand for further proceedings. With regard to the trial court’s determination that the mother physically abandoned her children under MCL 712A.19b(3)(f)(ii), the trial court did not clearly err by finding that the mother had the ability to visit, contact or communicate with the children and that she had, without good cause, failed to do so on a regular and substantial basis. Although the guardians had blocked inappropriate communications, they were willing to permit appropriate contact. A few contacts at inappropriate times was insufficient to establish the mother had “regularly and substantially” communicated with the children. The trial court took judicial notice of the fact that she had not filed any motions in the guardianship case alleging she was prevented from having contact.

Termination was improper, however, because the trial court clearly erred by finding that the requirements in MCL 712A.19b(3)(f)(i) were satisfied. To find that the requirement in subdivision (f)(i) was met, the trial court must find by clear and convincing evidence either (1) that the respondent-parent either “failed or neglected, without good cause, to provide regular and substantial support for the minor for a period of 2 years or more before the filing of the petition” or (2) “if a support order has been entered,” that the respondent-parent “has failed to substantially comply with the order for a period of 2 years or more before the filing of the petition.” MCL 712A.19b(3)(f)(i). Because a support order was in place, the court was required to use the second method of determining financial abandonment, not a combination of the two methods. The petition was filed on July 19, 2023, so the relevant two-year timeframe is between July 19, 2021 and July 19, 2023. See In re Caldwell, 228 Mich App 116, 120; 576 NW2d 724 (1998), stating that “the court must determine whether statutory grounds for termination exist by looking at the two years immediately preceding the filing of the termination petition.” The support order for EE was entered on June 27, 2022, with an effective date of January 12, 2022. There are fewer than twenty-four months between January 12, 2022 and July 19, 2023. Accordingly, respondent only failed to substantially comply with the support order for EE around 18 months before the filing of the petition. The support order for AE was entered on January 12, 2022, with an effective date of October 1, 2021. There are fewer than twenty-four months between October 1, 2021 and July 19, 2023. As a result, respondent only failed to substantially comply with the support order for AE for around 21 months before the petition was filed. The trial court clearly erred by finding termination warranted under MCL 712A.19b(3)(f)(i).

UNPUBLISHED

In re KAZMIERCZAK, Minor, (August 22, 2024), No. 369083, Lapeer Circuit Court Family Division LC No. 22-012983-NA

Issues:
Termination of father’s rights under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), under MCL 712A.19b(3)(c)(g) (parent fails to provide proper care or custody), under MCL 712A.19b(3)(c)(i) (parental rights to one or more siblings terminated), and under MCL 712A.19b(3)(c)(j) (reasonable likelihood child will be harmed if returned to parent).

Summary:
On appeal, respondent argues that the trial court clearly erred by finding that the statutory grounds for termination were established by clear and convincing evidence and by finding by a preponderance of the evidence that termination of his parental rights was in KAK’s best interests. Embedded in these arguments are respondent’s claims that reasonable efforts at reunification were not made, especially given his cognitive limitations, and that a guardianship should have been established instead of termination.

On the guardianship issue, a guardianship may be appropriate when “an ongoing relationship with [the parent]—rather than termination—is in the children’s best interests.” In re Mason, 486 Mich 142, 164 (2010). “[W]hile the guardian assumes the legal duties of a parent . . . , the parent is still under many circumstances permitted to maintain a relationship with the child.” In re TK, 306 Mich App at 705. In this case, the trial court took the lead in having the DHHS look into the possibility of a guardianship, but the court ultimately found that the continuing risk of harm respondent posed to KAK rendered a guardianship inappropriate. The Court of Appeals affirmed, holding that the trial court did not clearly err by finding by a preponderance of the evidence that termination of respondent’s parental rights was in KAK’s best interests.