In re Pops
315 Mich. App. 590
| Mich. Ct. App. | 2016Background
- DHHS obtained jurisdiction after respondent pleaded no contest to fleeing police with child EP in his vehicle; marijuana and a scale were found; respondent later pleaded guilty to resisting/obstructing and was placed on probation.
- EP was initially placed with respondent’s mother (grandmother), who had cared for EP since birth; DHHS later removed EP after determining the grandmother could not be licensed because of her criminal history and placed EP in foster care.
- Respondent engaged in services while not incarcerated (parenting classes, supportive visitation, drug screens clean except one explained result) but was later incarcerated for carrying a concealed weapon and could not complete certain services.
- DHHS filed to terminate respondent’s parental rights; the trial court found grounds under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue), (g) (failure to provide proper care/custody), and (j) (reasonable likelihood of harm) and terminated parental rights.
- The appellate court reviewed whether termination was supported by clear and convincing evidence, focusing on (1) whether DHHS properly refused or failed to utilize relative-placement discretion for the grandmother, (2) whether respondent meaningfully participated in services when able, and (3) whether respondent’s incarceration/criminal history alone justified termination for likely harm.
Issues
| Issue | Plaintiff's Argument (DHHS) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether conditions that led to adjudication continue and won’t be rectified (MCL 712A.19b(3)(c)(i)) | Criminal activity and respondent’s incarceration show conditions persist and won’t be rectified in a reasonable time | Respondent placed EP with grandmother; DHHS wrongly removed EP and respondent participated in services when able | Reversed: clear error — DHHS improperly removed EP from grandmother without following its own discretionary licensing framework; incarceration/criminal record insufficiently shown to keep conditions continuing |
| Whether respondent failed to provide proper care or custody and won’t be able to within a reasonable time (MCL 712A.19b(3)(g)) | Incarceration and inability to provide alternative placement support termination | Respondent relied on grandmother for care; he engaged in available services when not incarcerated | Reversed: respondent participated meaningfully in services when able; DHHS had discretion to place with grandmother and did not properly deny that option |
| Whether there is a reasonable likelihood of harm if child returned (MCL 712A.19b(3)(j)) | Respondent’s criminal conduct (fleeing police, concealed weapon) posed risk to child | Criminal history and current incarceration alone do not prove future risk of harm | Reversed: termination cannot be based solely on incarceration/criminal record absent evidence of unreasonable risk of serious abuse or enumerated violent offenses |
| Whether DHHS followed its relative-placement policies and licensing rules | Removal from grandmother was justified by her criminal record | DHHS failed to follow its own guidelines; grandmother’s convictions were misdemeanors and discretionary placement/approval procedures apply | Reversed: record lacks required home-study documentation and DHHS misapplied its licensing criteria; no evidence of safety concerns was recorded |
Key Cases Cited
- In re Mason, 486 Mich 142 (2010) (incarceration or criminal history alone insufficient to terminate parental rights; (3)(c)(i) and (g) should be considered together)
- In re Sanders, 495 Mich 394 (2014) (an incarcerated parent’s choice to place a child with a relative merits deference when adequate care is provided)
- In re BZ, 264 Mich App 286 (2004) (standard of review for termination findings: clear error)