BY JAMES A. PERRY (SAGINAW COUNTY)
Aggravated circumstances are not necessarily new to neglect cases, however, the appellate courts have been focusing on this and other issues arising in the child welfare arena lately. A review and examination of the law as it presently stands may be helpful.
What are aggravated circumstances? They refer to statutorily defined conduct that, when found by the judicial officer, removes the requirement of the Michigan Department of Health and Human Services (“the Department”) to provide reasonable efforts towards reunification and relieves the agency of the obligation to provide services to the parent. Aggravated circumstances are found in two statutes, MCL 712A.19a(2) and MCL 722.638. The first is the permanency planning statute and the second is part of the child protection law. Many of the aggravated circumstances are similar to the grounds for termination of parental rights in MCL 712A.19b(3).
The permanency planning statute identifies aggravated circumstances as parental conduct resulting in the conviction of murder, voluntary manslaughter, aiding and abetting, attempted murder, or conspiracy to commit the murder of a child or parent. MCL 712A.19a(2)(b). In addition, the parental conduct could result from a felony assault resulting in serious bodily injury to a child, or involuntary termination of parental rights when the parent has failed to rectify the conditions which led to the termination, or if the parent is required to register as a sex offender. MCL 712A.19a(2)(b), (c), and (d).
The child protection law identifies aggravated circumstances as parental conduct resulting in abandonment of a young child, or criminal sexual conduct involving penetration. MCL 722.638(1)(a)(i) and (ii). Aggravated circumstances could also result from serious physical harm, or serious impairment of an organ or limb, other life-threatening injury, or attempted murder. MCL 722.638(1)(a)(ii)-(vi). Aggravated circumstances may also include the prior involuntary termination of parental rights, or a voluntary termination if the parent failed to rectify the conditions leading to the termination, and the prior conduct involved an aggravated circumstance identified in the permanency planning statute. MCL 722.638(1)(b).
Under MCL 712a.19a(2), the court must make a “judicial determination” that a parent subjected the child to one of the aggravated circumstances. See also MCR 3.976(B)(1)(a) (referencing “a judicial determination that the child’s parent has subjected the child to aggravated circumstances...”). Neither the statute nor the court rule identifies the evidentiary standard for the “judicial determination.” They also do not identify whether a finding of aggravated circumstances is discretionary with the court. The Department is required under MCL 722.638 to file a petition if the Department makes one of the listed aggravated circumstances determinations. Because the Department made this determination, is the court then also required to make such a judicial determination? Is the standard of proof for a judicial determination probable cause because this determination of aggravated circumstances is generally made at the preliminary hearing?
On May 21, 2021, the Michigan Supreme Court issued an Order in In re Simonetta, 507 Mich 943 (2021). In this Order from an aggravated circumstances case, the Supreme Court reversed the decision of the Michigan Court of Appeals and remanded the case to the trial court. The Order directed the trial court to “either order that the petitioner provide reasonable services to the respondent, or articulate a factual finding based on clear and convincing evidence that aggravated circumstances exist such that services are not required.” 507 Mich 943 (emphasis added). The Simonetta Court reversed the Court of Appeals’ affirmance of the trial court’s decision to terminate parental rights at the initial dispositional hearing. The remand to the trial court would then procedurally be at the stage of termination of parental rights at the initial dispositional hearing where clear and convincing evidence is required. MCR 3.977(E)(3).
The Court of Appeals has reversed termination cases because the trial court did not find aggravated circumstances by clear and convincing evidence, as required by In re Simonetta, supra. See In re Bell, unpublished per curiam opinion of the Michigan Court of Appeals, issued November 10, 2022 (Docket No 360305), p 7. The Michigan Court of Appeals in other unpublished opinions has affirmed and not required a finding of aggravated circumstances by clear and convincing evidence, because the statute only requires that the finding be made. See In re Reyna, unpublished per curiam opinion of the Court of Appeals, issued June 1, 2023 (Docket No 362764), p 8, and In re Perry, unpublished per curiam opinion of the Michigan Court of Appeals, issued November 17, 2022 (Docket No 358904), p 7-8.
What are judicial officers to do with these differing opinions? The unpublished Court of Appeals cases are persuasive only. The Simonetta Order of the Michigan Supreme Court requires an aggravated circumstances finding by clear and convincing evidence at the initial dispositional hearing when termination is requested. But, what standard should be used at the preliminary hearing? It may not make logical sense to apply this to the preliminary hearing because of the difference in standards and the use of hearsay at the preliminary hearing. Recall that an aggravated circumstances finding affects services only – it is not a ground for termination in and of itself unless it is the same as one of the grounds for termination under MCL 712A.19b. And if the aggravated circumstances finding is not supported on appeal, then the case would presumably return to a point where services would be required. Given the time for appeals to make their way through the courts, this would mean potentially a year or more without permanency and stability for the children.
Until there is more guidance, the safest position seems to be one of requiring the Department to make reasonable efforts unless the aggravated circumstances facts align with the grounds for termination that the judicial officer considers egregious – significant physical or sexual abuse, for example, or a prior aggravated circumstances case where conditions have not been rectified. Further clarification from a published Michigan Court of Appeals case or the Michigan Supreme Court would be helpful as to the standard of proof for judicial determinations of aggravated circumstances at the preliminary hearings.