P in Re duran/smith Minors
356856
| Mich. Ct. App. | Feb 17, 2022Background
- Case: In re DURAN/SMITH (Mich. Ct. App., Feb. 17, 2022). Judge Michael J. Kelly concurred in part and dissented in part.
- Trial court terminated respondents’ parental rights to three children: BMS (older son) and younger siblings EMD and ERD, finding statutory grounds under MCL 712A.19b(3)(b)(i),(b)(ii),(j), and (k)(iii).
- Evidence: BMS had documented behavioral problems and a PTSD diagnosis and had been the subject of abuse/neglect concerns; medical records showed temper tantrums and self-harm behaviors.
- By contrast, EMD and ERD were healthy, uninjured, and well cared for at removal; they had not received well-child visits for over a year, but there was no evidence of medical need or prior harm.
- CPS investigator and petitioner argued that because of respondents’ treatment of BMS, there was a reasonable likelihood the younger children would be harmed (anticipatory neglect doctrine); respondents had stable housing and employment and the home assessment revealed no concerns.
- Judge Kelly agreed termination was proper as to BMS but would reverse termination as to EMD and ERD, finding the record speculative and insufficient to show a reasonable likelihood of harm to them.
Issues
| Issue | Petitioner’s Argument | Respondents’ Argument | Held |
|---|---|---|---|
| Whether statutory grounds for termination under MCL 712A.19b(3) exist for BMS | BMS showed abuse/neglect and respondents’ conduct supports statutory grounds | Respondents disputed extent of harm but did not overcome evidence for BMS | Upheld for BMS — trial court did not clearly err |
| Whether same statutory grounds exist for EMD and ERD based on anticipatory neglect | Treatment of BMS shows reasonable likelihood younger siblings will be harmed if returned | Argued EMD/ERD were healthy, different in age/needs, and evidence is speculative | Reversed as to EMD/ERD (Judge Kelly): evidence speculative; anticipatory neglect inapplicable here |
| Whether failure to obtain well-child visits constitutes actual neglect supporting termination | Lack of well-child visits shows neglect and risk of future harm | Failure alone, where children are healthy and uninjured, is not actual neglect; economic realities may explain gaps | Judge Kelly: failure to obtain wellness exams for apparently healthy children is insufficient to establish actual neglect or reasonable likelihood of future harm |
| Whether termination is in the best interests of the children | For BMS, termination serves his safety and needs | For EMD/ERD, best-interest finding unsupported without statutory grounds | Judge Kelly concurred that termination was in BMS’s best interests; would not find it for EMD/ERD absent statutory grounds |
Key Cases Cited
- In re LaFlure, 48 Mich App 377 (introduces and permits anticipatory-neglect inference from treatment of one child to others)
- In re LaFrance, 306 Mich App 713 (doctrine of anticipatory neglect weakened by marked differences between children)
- In re Kellogg, 331 Mich App 249 (age and behavioral differences decrease probative value of anticipatory-neglect inference)
- Santosky v. Kramer, 455 U.S. 745 (parents’ fundamental liberty interest requires more than speculative predictions to terminate rights)
- In re White, 303 Mich App (appellate review and clear-error standard in termination cases)