948 N.W.2d 131
Mich. Ct. App.2019Background
- DHHS filed an original permanent-custody petition seeking immediate termination of mother’s parental rights to newborn LR, alleging prenatal alcohol use and injuries consistent with fetal alcohol syndrome (FAS).
- LR was born with multiple serious medical conditions (microcephaly, intracranial injury, hydrocephalus, heart murmur, etc.); mother admitted daily drinking during pregnancy and had a history of alcoholism; she has an older child in a guardianship because of substance use and domestic violence.
- Petitioner sought termination under multiple statutory grounds including MCL 712A.19b(3)(b)(i), (g), (j), and MCL 712A.19b(3)(k) subparts mirroring aggravated-abuse language in MCL 722.638(1).
- No case service plan was prepared and DHHS did not provide reunification services because it sought termination in the original petition; the trial court nevertheless found statutory grounds and terminated mother’s rights.
- Judge Beckering (dissenting) concludes DHHS was required to provide reasonable reunification efforts under MCL 712A.19a(2) unless one of the statute’s enumerated aggravated circumstances applied, and she reasons prenatal conduct alone does not fall within MCL 722.638(1) because the statutes do not treat a fetus as a “child.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DHHS must make reasonable reunification efforts before seeking termination via an original petition | DHHS: termination may be sought in an original petition and reunification services are not required when termination is the agency’s goal | Mother: MCL 712A.19a(2) requires reasonable efforts in all cases except specified aggravated circumstances | Beckering: DHHS must provide reasonable efforts unless an aggravated circumstance in MCL 712A.19a(2)(a)-(d) applies; general policy does not excuse services simply because termination is sought |
| Whether prenatal substance exposure / newborn’s FAS-like injuries qualify as "aggravated circumstances" under MCL 712A.19a(2) (via MCL 722.638) so as to excuse reunification efforts | DHHS: petition’s allegations of prenatal alcohol use and FAS-like injuries amount to aggravated circumstances justifying immediate termination | Mother: Prenatal conduct does not fall within MCL 722.638(1) because the statutes define “child”/“person” as postnatal individuals under 18; Legislature has not included fetuses | Beckering: Prenatal conduct alone does not constitute the enumerated aggravated circumstances; MCL 722.638(1) speaks of a “child,” and statutes do not treat a fetus as a child for these provisions |
| Whether MCL 722.638(2) required DHHS to include an initial-disposition termination request | DHHS: pursuit of termination at initial disposition was appropriate based on alleged severe prenatal injury | Mother: No, because MCL 722.638(1) (which triggers MCL 722.638(2)) does not plainly apply to prenatal injuries | Beckering: MCL 722.638(2) did not obligate immediate termination here because subsection (1) does not, on its face, encompass prenatal conduct |
| Remedy / effect on best-interests determination | DHHS: termination was in LR’s best interests given serious medical needs and mother’s substance use | Mother: Because DHHS failed to provide statutorily required reunification services, termination should be vacated and case remanded for services/dispositional proceedings | Beckering: Vacate termination and remand for provision of reunification services and further dispositional proceedings; best-interests analysis is moot until services and disposition occur |
Key Cases Cited
- In re Mason, 486 Mich. 142 (Mich. 2010) (reasonable reunification efforts required except in enumerated aggravated-circumstance cases)
- In re Rood, 483 Mich. 73 (Mich. 2009) (same principle regarding reunification efforts)
- In re Hicks, 500 Mich. 79 (Mich. 2017) (Department has affirmative duty to make reasonable reunification efforts and prepare a case service plan)
- In Matter of Dittrick Infant, 80 Mich. App. 219 (Mich. Ct. App. 1977) (probate court cannot assert jurisdiction over an unborn child under the then-existing Probate Code)
- In re Baby X, 97 Mich. App. 111 (Mich. Ct. App. 1980) (prenatal drug exposure may be probative of neglect at dispositional phase but does not by itself authorize permanent deprivation without dispositional proceedings)
- In re Moss, 301 Mich. App. 76 (Mich. Ct. App. 2013) (discussed in text; involved aggravated circumstances where reunification was not required)
- People v. Jones, 317 Mich. App. 416 (Mich. Ct. App. 2016) (statutory interpretation recognizing that fetus is not a “person” for certain criminal child-abuse statutes)