*1
In re 73
In re ROOD
(Calendar
1).
Argued
2,
Docket No. 136849.
October
2008
No. Decided
April
2009.
(DHS)
Department
petition
The
Human
Services
filed a
the
Family Division of the Mason Circuit Court to terminate the
parental rights
respondent
Darroll D. Rood to a child he had
respondent
out
fathered
of wedlock.
had been incarcerated for
a domestic
the child
violence conviction when
was removed from
care,
respondent provided
her mother’s
but the
the DHS and the
telephone
court
address and
after
with his
number
his release.
information,
Despite having
respondent’s
the
correct contact
both
repeatedly
the court and the DHS
used an incorrect address and
telephone
attempting
give respondent
number when
notice of
dispositional hearings
proceedings taking
the various
and other
mother,
place
neglect
against
in the
case
the child’s
which would
parental rights. Ultimately,
court,
Raven, J.,
affect his
the
Mark D.
respondent’s parental
terminated the
under MCL
712A.19b(3)(g)
(j), ruling
respondent
and
that the
had failed and
likely
custody
provide proper
would
continue to fail to
care and
for
likelihood,
part
his child and that there was a reasonable
based in
violence,
respondent’s history
on the
that
of domestic
the child
would suffer harm returned to the
home. In an
(Docket
curiam,
unpublished opinion per
issued June
No.
280597),
Appeals,
the Court of
Zahra and
JJ.
(Jansen,
Gleicher,
EJ.,
reversed, holding
dissenting),
clearly
that the trial court had
by concluding
erred
the criteria set forth in MCL
712A.19b(3)(g)
(j)
and
had been established
clear and convinc-
ing
give
evidence. The Court remanded the case to
the
ability
opportunity
willingness
an
to demonstrate his
Supreme
granted
applica-
his child. The
Court
the DHS’s
appeal, directing
parties
tion
leave to
to address various
adequacy
issues related to the
of the DHS’s efforts to contact the
(2008).
respondent during
proceedings.
Mich
opinion by
joined by
In an
Justice
Justice
Chief
Kelly
Corrigan,
opinions by
Justice
Justice
Justice
Cavanagh,
Markman,
Supreme
and Justice
Court held:
Young,
Weaver,
in order to avoid by by following assumed office the considered the Court before she justices participating only practice previous of in transition and her be result-determinative. those cases for which vote would Proceedings — — of Protective Termination Parent and Child Child Proceedings. Eights — of Protective Parental Notice Child rights may person’s parental without The state not terminate person having adequate attempts provide notice of the the made and, appropriate, opportu- pretermination proceedings the when parents nity participate for in those in services available (MCL seq.). seq.; 3.900 et 712A.1 et MCE Attorney General, Cox, Casey, Thomas L. Michael A. Pros- General, Solicitor ecuting Sniegowski, Kasley Susan Attorney, petitioner. the respondent. for the Jeffrey C. Nellis 483 Mich Opinion by Corrigan, Amicus Curiae: for the
Vivek S. Sankaran Children’s Law section of Michigan State Bar. CORRIGAN, J. The of Department Human Services (DHS) challenges reversal the Court of of a Appeals terminating respondent circuit court order father’s Rood, In parental rights daughter. unpublished to his re opinion per curiam of the Court of issued June Appeals, (Docket 280597). 12, 2008 No. affirm the judgment We of the Court of As that court Appeals. opined, respondent parent” behaved as “less-than-ideal and “shares respon- sibility” for his lack of communication with the DHS and liberty court. Id. at 3. But the “fundamental interest care, parents custody, natural and management of their child does not evaporate simply they because have not been model parents temporary custody have lost Kramer, their child to the State.” v Santosky 455 US (1982). 753; 1388; 102 S Ct L Ed 2d Accordingly, the State to destroy “[w]hen moves weakened familial bonds, parents it must provide fundamentally procedures.” Here, fair Id. at 753-754. the attempts at communication with and notice to respondent about the proceedings, part as a result of errors the DHS and court, failed comply with state and federal require- and, ments under the case, circumstances of this denied minimal procedural process. due Because his affected, substantial Appeals were the Court of correctly give remanded this case in order to Rood, “a fair In re opportunity participate.” at 5. supra *4 FACTS AND PROCEEDINGS A., This case concerns respondent’s daughter, who was born out of respondent wedlock to and Laurie Kops In re Opinion Corrigan, J. 16, April relationship on 2004.1 Their ended when A. that, year respondent only was about one old. After had sporadic Respondent contact with A. last saw A. in Kops’s December when he went home to time, celebrate Christmas with A. At that he Kops had an in a argument that culminated domestic vio- lence him.2 He that he no charge against longer testified because, event, A. after that he ordered to have saw was Kops.3 no contact with 21, 2006, County
On March DHS placed Mason A. in foster care after had confirming reports Kops caring not been for A. but had all her left three of children with friends for making provisions without their care. were Kops’s whereabouts unknown. Child Protective Services worker for the DHS knew respondent was A.’s father and understood that County jail day the Mason on the protective custody DHS took of A. The record reflects parties dispute —and the do not A.’s placement —that following designated with the state removal was funding iy E, federal under subchapter part 1 Respondent acknowledging paternity. executed an affidavit The affi record, paternity appear presumably davit of does not but 722.1003(1), respondent acknowledged parentage under MCL which wedlock, provides: “If a child is born out of a man is considered to be the joins natural father of that child if the man with the mother of child acknowledges by completing that child as his child a form that is an acknowledgment parentage.” acknowledgment an Such “establishes paternity, may support, and... be the basis for court ordered child custody, Accordingly, parenting respon time....” MCL 722.1004. legal, putative, dent’s status is that of a not a father. 27, 2005, police report Kops’s A dated December reflects claims that verbally her, physically causing injury, abused on Decem events, Respondent Kops’s pleaded ber 2005. denied version of but violence, offense, 750.81(3), guilty of domestic second and was time sentenced to served. prior already place He later admitted that a no contact order was at time; prior this he had violated this order on Christmas in order to see A *5 MICH 73 Opinion by CoRrigan, J. Act,
United Security States Social USC 670 et seq. (Title IV-E). Accordingly, detail, as in explain we will federal governing protective law child directly the case is implicated subject as to federal audit and review. confirmed that he had
Respondent jailed been for the domestic violence conviction that stemmed from the Christmas 2005 incident. He pleaded guilty on March 14, 2006, and, being served, after sentenced to time he was released jail from around the same time that A. was day release,
removed to foster care. The after his Kops called to him inform that A. was in DHS custody. On 23, 2006, March telephoned he the DHS and informed Child Straley Protective Services worker Susan that he had been jail. Straley released from had not previously to contact him. attempted He testified that he told her he wished to have A. him placed Straley with but told him “they looked to the child place back with the Straley mother not told respondent father[].”4 he could call the DHS to set up visits with A. Respon- that, dent light testified of Kops’s history denying A., him access he did not wish to set up visits and risk her seeing period over a brief and then seeing never her again if she placed back care. did Kops’s He “think any put kid should be through push and pull their parents.” He further testified Straley did not tell him that the DHS would create a parent/agency plan treatment and service agreement (service plan) to provide parents services to A.’s in an attempt reunify her with her family. 4 Straley telling respondent place only denied that the DHS would A. that, although generally try
with her mother. She testified the DHS does reunify parent, telling a child with the custodial she did not recall only mothers, that the DHS worked toward reunification with opposed to fathers. In re ROOD Opinion by Corrigan, Straley cell gave testified that he his Respondent number, phone girlfriend, the cell number of his phone Marshall,5 and their address on Manistee Corinna Manistee, him the Michigan. Straley gave then Street of the DHS foster care worker phone name and number 30, 2006, on March Leasa who would take over case phone furnished Straley Patterson. also address to Patterson. number and Manistee Street the Mason Family March Division of On *6 preliminary hearing Court mailed a notice Circuit at an incorrect address on 10th Street respondent The notice returned to the court as Manistee. was 6, The record does not April undeliverable on 2006. the inaccurate 10th Street why reveal the court used address.6 (ISP) dated plan drafted an initial service
Patterson 19, 2006, designed help that outlined services April stated custody erroneously of A. The ISP Kops regain that whereabouts were “unknown.” try respondent, despite Patterson did not to contact Lacking proper contact information for him. having in the notice, participate April did not respondent court or- hearing, After the preliminary hearing. DHS, Kops that A. in the care of the that dered remain “ time, efforts [reasonable and that parenting receive reunify family preserve shall be made to and child(ren) safely return possible make it for home.” 5 Straley respondent gave only phone that her one cell number. attested matters, includ contains documents from unrelated The court record conviction, linking respondent
ing
apparently
to the 10th
certificates of
Respondent
never lived at that address. It
address.
claims that he
Street
why
of convic
was included on the certificates
is not clear
this address
respondent
Although
on the exhibits
various addresses are listed
tion.
certificates,
police reports
the 10th Street address
attached to
among
them.
The notice that respondent actually first received him was mailed to his correct address advised that a involving take dispositional hearing Kops place would on June 2006. this Respondent hearing, attended during Kops which entered a no contest to the plea neglect allegations. Accordingly, the retained ju- court 712A.2(b).7 risdiction over A. under did court conduct; rather, not address respondent’s rights court yet stated he was not because allegations against no had been made him. that,
Respondent later testified until this he hearing, neglect had not been aware that a case against Kops pending; Straley, from his conversation with he only Kops understood had left A. with someone else and that Kops’s day whereabouts were unknown on the that the protective custody. hearing, DHS took At the gave the court his Manistee Street address and a cell number. phone The court told him he could obtain copies petition paperwork. other According Patterson, respondent knew he could with her after speak hearing, but he “he got upset and stormed out of the courtroom and left.”
A second dispositional hearing was held on June reasons, 2006. For unknown instead of the Man- using *7 istee Street address successfully that the court had used respondent 8, and that had again provided on June the court sent notice hearing respondent of this to at the 712A.2(b)(l) jurisdiction juvenile confers court over a [wjhose parent person legally responsible or other for the care juvenile, so, neglects and maintenance of the when able to do or provide proper necessary education, support,
refuses to or medical, surgical, necessary or other care for his her or health morals, subject or who is ato substantial risk of harm to his or well-being, parents, her mental who is abandoned his her or guardian, custodian, custody proper or other or who is without guardianship. or In re Opinion by Corrigan, Thus, did not respondent appear. address. 10th Street stay that A. in the the the court ordered hearing, After continue toward the DHS but that efforts would care of regard respondent, to the Kops. reunification with With given is to be to the stated: “Notice simply order father(s) by law.” required as legal/putative later, 6, 2006, Patterson contacted July A week on respondent. contact Kops to ask knew how to Kops he was apparently falsely told Kops her — —that she contacted Irons, Michigan.8 Patterson testified that had for respondent the number she Kops phone because her attempt Patterson did not record did not work. the number she used. respondent phone call (USP) for completed by Patterson updated plan service 2006, 17, 2006, however, 19, July period April respondent found phone lists the same number 19, 2006, ISP; the USP does not include April by respondent during phone provided new number present. at which Patterson was hearing June 8 hearings took dispositional/review Two additional 7,2006. The court 14 and December place September on hearing respondent notice of the September mailed The court did not incorrect 10th Street address. at the On hearing. the December any notice at all of send 2006, that a parties the court notified the December on hearing place would take planning permanency hearing The notice advised that March 2007. paren- to terminate “may result further at again The notice was sent rights.” tal address and was returned incorrect 10th Street the court undeliverable. De- on attempted to contact
Patterson
of the most
20, 2006,
copy
she sent a
cember
when
this case was
Respondent
that he did not five in Irons while
testified
pending.
*8
recent service and her business card to the Man- address; 28, 2006, istee Street on December that mail In January was returned to her as undeliverable.9 again Kops Patterson asked she knew how to locate respondent; Kops replied that she did not know his whereabouts. January 24, 2007,
On petition Patterson filed a seeking to terminate the parental rights Kops of both and respondent. petition alleged Kops that could provide a stable home for her children and had failed make progress plan. under the service It alleged respondent further had contributed to A.’s neglectful unsafe and environment —and therefore that his should be terminated under MCL 712A.19b(3)(g) by physically assaulting Kops in De- —
cember 2005 in A.’s presence, failing pay child support placed care, since A. was in foster failing to participate contact Patterson to in services in order to gain custody, and to have contact failing with A. after she in placed Finally, was foster care. the petition alleged respondent’s rights should be terminated 712A.19b(3)(j) under MCL A. likely because to be harmed if in placed his home since respondent had history “criminal and pattern instability . .. .” The petition recounted several breaking convictions: entering a building steal, 750.110, with intent MCL 1999; attempt misdemeanor to resist and obstruct an officer, 750.479, 2005; MCL misdemeanor domestic they Both and Marshall testified that lived at the Man- parents istee Street address in a home owned Marshall’s hut moved to apartment July they an on Ramsdell Street from 2006 to June 2007 while up fixed the home. Marshall stated that she forwarded the mail for occupants” during herself and “all that time. Marshall and they stated that each continued to mail receive at the Manistee Street parties explain why address as well. The could not Patterson’s December 20, 2006, mail was returned to her. In re Opinion Corrigan, 2005; violence, 750.81(2), and the domestic dispute from his stemming conviction violence *9 in December 2005. Kops parental to terminate
Proceedings 23, for March 22 and scheduled originally were January 25, 2007, the court sent notice of 2007. On at the correct Manistee proceedings respondent 2007, 1, At the March permanency Street address. were hearing, proceedings the termination planning 23, 2007, Patter- May On called adjourned. had for her. He testified that he message son and left a him attorney, who advised spoken prosecuting to the May his call on 25. At contact Patterson. She returned custody he of A. and that time he told her that wanted respon- Patterson instructed capable raising was her. him at the termina- represent dent to obtain counsel on hearing place The next review took proceedings. tion of this 12, June 2007. received notice Respondent the court mailed to the Manistee Street hearing, which 14, June address, hearing. and he at the On appeared 2007, attorney Jeffrey Nellis appointed the court represent respondent. hearing place August took on
The termination
years
A.
under
old at the
just
2007.
was
31/2
past
described his
hearing,
time. At the
He
and his desire to raise her.
relationship with A.
that,
spent
he
time
testified
before December
and,
Kops,
he lived with
he was often
A.
when
with
with her when
night
got up
who fed A. at
or
one
ended, he
relationship
Kops
After his
she cried.
visits,
Kops
but
overnight or weekend
requested
Kops
saw A.
“wanted
refused. He
when
generally
something
or “needed
buy something”
[him]
overnight”
Kops
because
[A.]
to watch
[him]
wanted
A.’s
He
concerned about
having a
was
party.
Respondent began that, also testified until he receiv- ing the termination notices about at his address, Manistee Street he did not know that the DHS attempting him; or the court was to contact he there- Kops and, fore assumed that A. had been returned to Kops usual, that he would hear from until she something that, needed from him. He assumed being children had remained in care and foster were not *10 Kops, reunified with the DHS or the court would have placement admitted, contacted him about with him. He however,that he had not made further efforts to contact the DHS or the court for information about the outcome up or to set visits with A. respondent’s testimony
The record confirms that he pay support, was never ordered to child either A. while Kops was with when she was foster care. The prosecutor why prosecutors did not know local or the sought support, particularly Kops DHS had not when public Respondent received assistance.10 stated that he gave Kops money after A. was first born and later bought Kopsrequested, diapers, items that like because Kops spend money otherwise would on alcohol. He assistance, federally supported public When a child receives includ funds, ing required support Title IV-E the state is to seek child from a 654(4)(A)(i) parent. (20); 666; noncustodial 42 USC and 42 USC 45 CFR 302.31(a)(2). end, Michigan permits To this law the DHS to seek child support requires prosecuting from a noncustodial and attor ney represent 552.451b; the DHS such matters. MCL 722.3(2). 552.454(1); MCL In re Opinion Corrigan, stated, they wanted me child I pay “[I]f support pay stated, would child He also “I’ll support.” do they get whatever want me to do” to A. back. He he job testified that did not have a could full-time but pay support because Marshall working because jobs he did odd for Marshall’s father and occasionally worked as self-employed mechanic.
Marshall confirmed that she had lived respon- months, dent they for about 18 that stating while both M., cared for respondent cared for her “mostly because he’s home more” while Marshall worked. Marshall testified, “He her, her, takes care of he feeds he takes outside, her he makes sure goes she’s bathed an[d] bed done, on time.” When asked had how he Marshall responded, “Excellent, my daughter loves him to death.” Marshall also testified that had never assaulted or abused Marshall.
Respondent’s that, argued minimum, counsel at a was premature. respon- termination He requested given dent “at least be an opportunity to participate services.” He added that had DHS concerns about stability, mental it could conduct a psycho- logical home study. evaluation or a testimony
The prosecutor introduced from DHS staff of respondent’s evidence convictions. Patterson she sought respon- testified that termination because diligent dent “has criminal record ... didn’t make attempts contact She enough [her].” was not aware given money claimed have and items *11 caring to in order to for A. he Kops care or that was for that, another child. She admitted if she had been contact him process, with earlier the she would have study ordered a home of appropriateness assess the placement with him. 483 Mich Corkigan, Opinion proceed- in the termination participate did not
Kops rights her Rather, voluntarily relinquished she ings. 29, 2007.11 August A. on respondent’s of that termination court ruled
The 712A.19b(3)(g) and MCL under appropriate was rights appropriate 3(g) subsection under (j). Termination intent, to provide fails regard to without “parent, the is no child and there for the custody care or proper will be able parent that the expectation reasonable a reasonable custody within care and provide proper 712A.19b(3)(g). age.” the child’s considering time under was warranted that termination The court ruled convictions of two respondent’s because that subsection allega- and “the involving Kops domestic violence during present child . that the was DHS]. the . [by tion court also observed the domestic violence.” daugh- his support since paid had not child respondent care, payments had he made nor placed was foster ter him to reimburse requiring a court order under Finally, al- in A.’s case.12 provided state for services “contingent upon” rights Kops her reflects that released The record rights. have other information concern respondent’s We no termination of proceedings. “contingent” ing release affected or how her whether specter voluntary release creates a Placing on her such a condition state, light unexplained failures of particularly in misconduct respondent up with on their lack of contact and the court to follow the DHS custody clearly respondent gain asking want beyond Kops did not —who Indeed, living. she because knew where A—if she hearing, day termination before her to A. on released respondent’s rights impression that termination of the record creates parent foregone has constitu Because a noncustodial was a conclusion. child, may not enter into tionally protected in his the state interest may compromise the state’s agreements with an unfit custodial Doing parent. so creates child the noncustodial to reunite the efforts proceedings and parent’s participation in the barrier to the noncustodial hearing. up fail at the termination thus sets him to 14, 2007, directing to a June order The court referred beginning attorney by paying a month $100 fees the court for reimburse *12 In re Opinion by Corrigan, J. though had informa- respondent Patterson’s contact tion, he had little contact the DHS the court. or Thus, the court found “a proper failure demonstrate [respondent] motivation on behalf of in at- making tempts to see his The court [child].” “[T]here added: responsibility has to be a a burden and of a And, step forward. it’s department’s responsi- not the bility to. .. him the way search out that’s been suggested by Thus, counsel.” the court concluded that appropriate termination was because the showed record by clear convincing respondent’s and evidence that “during absence a very important period developmental makes it that likely this child would suffer emotionally if respondent’s returned to the care.” The court found that there was “no that expectation reasonable he provide custody would be able to care and proper within a reasonable time this child’s considering age.”
The court also concluded was ap- termination propriate 712A.19b(3)(j), under MCL applies which when convincing clear and evidence establishes that likelihood, “[t]here is a reasonable based on the conduct or capacity parent, of the child’s that the will be child harmed if he she is returned to the home parent.” criminal The court cited respondent’s convic- tions and stated that “no one knows” had respondent “learned his lesson” or no had a . . longer “propensity . to be involved in criminal behavior.” The two domestic convictions, violence “of a particular, [sic] were concern to the Court.” finding
After grounds to terminate rights, the declined court to conclude that termination July 2007. It is unclear whether was of this aware order. stamp copy A on the order reflects that a was mailed on June to him mailing 2007. It does not indicate what address was used. 483 Mich Opinion Corrigan, It observed clearly in A.’s best interests.13
would not be A. had been in foster care more than months an to her developed that she had attachment stability continuity surrogate parents, experienced care, “thriving.” and was It characterized her and “virtually continuing held that stranger” risky long” process uncertain and reunification “an in her risky” and not best interests. “to[o] *13 major- respondent’s Appeals the Court of appeal, On Rood, In at The ity supra panel reversed. re 5. charac- “having respondent terized been a less-than-ideal during lifetime,” brief but concluded parent his child’s “the of in this case was that breakdown communication petitioner.” Id. at 3.14 predominantly attributable Although respondent “shares for this responsibility communication,” effort lack of he made the initial DHS, the hearings contact the attended for which he notice, his provided received and contact information to Therefore, and reasonable the DHS the court. “it was in that would involved the expect respondent become life, that he notice provided proper child’s received of Id. protective proceedings.” 712A.19b(5) hearing, provided: At the time of the grounds If the court that there are for termination of finds rights, parental parental the court shall order termination rights and order that additional efforts for reunification of the made, parent that child with the not be unless the court finds parental clearly termination to the child is not in the [Emphasis added.] child’s best interests. that, “during particular, panel In observed the first several dispositional case,” phase months of the of this Patterson’s efforts phone respondent, “consisted of one call to which failed to connect....” Further, Rood, supra try In re at 2. Patterson did not to contact through mail, although address, she his until more had Kops them five months after she had asked about where July 2006. at 3. abouts Id. In re Opinion by Corrigan, J. Further, because the record showed that primary caregiver and ap another child peared A., able to willing provide for the trial court “ concluded impermissibly that ‘there is no reasonable expectation that will provide be able to proper care within custody a reasonable 3-4, time Id. at quoting MCL 712A.19b(3)(g). Similarly, although respondent record, has a criminal none of his child neglect, offenses related to abuse or and his record did not as clear serve and convincing he evidence that would continue to engage domestic violence. Accordingly, the court’s determination there awas reasonable likelihood of harm to A. ” (cita conjecture.’ “amounted ‘essentially Id. at omitted). tion
The panel that, also observed under MCL 712A.18f(1), (2), (4), a enter before court may dispositional order a child protective proceeding, the petitioner must make rectify reasonable efforts to problems caused the child’s removal by adopting service Id. at 2. plan. adequacy of the petitioner’s efforts to services bear on provide may whether there is *14 sufficient parent’s rights. Id., evidence to terminate a Fried, citing App 535, 542; In re 266 Mich 702 NW2d (2005). 192 Because the efforts of the DHS were inad equate, light and in of respondent lack notice to many proceedings, of the court the panel vacated the terminating order respondent’s parental rights and remanded for “reconsideration after has respondent ability received an to demonstrate opportunity his willingness parent” Rood, A. re 4.15 In at supra 15 dissent, Judge respondent In Jansen stated that “took little Kathleen petitioner, thereby demonstrating general initiative to contact his indif Rood, supra ference re for the life the child.” In at 1 (JANSEN, J., opined dissenting). possibility respon a “real She there was fully participate proceedings dent’s failure to in these not so much was 483 Mich Opinion by Corrigan, Court, in this and we appeal sought DHS leave of the Court of judgment the We affirm
granted leave.16
trial court for
this case to the
and remand
Appeals
this opinion.
with
proceedings consistent
OF REVIEW
STANDARD
defer to a trial court’s
obliged
are
courts
Appellate
if those
termination
findings at
factual
In
3.977(J);
MCR
error.
do not constitute clear
findings
Minors,
341, 356; 612 NW2d
462 Mich
re Trejo
(2000).
court’s
error both the
review for clear
“We
been proven
for termination has
ground
that a
decision
adequate
as it was to his desire
avoid
a lack of
notice
attributable to
placing A.
Id. She concluded that
the child’s mother.”
contact with
utterly
placing the child with an
respondent
tantamount to
“would be
genuine
stranger”
likelihood that the
and that “there was
disinterested
placed
harm if
from future emotioned
child would suffer
custody.”Id. at 1-2.
parties
the
to address
We directed
(1)
adequate
Department
made
of Human Services
whether the
father,
respondent-appellee
had
who
efforts to contact the
8, 2006,
given
the court at the June
information to
contact
(2)
mother;
hearing concerning
natural
of the child’s
legal
Department
was under
of Human Services
whether
rule,
study
duty,
a home
imposed
or court
to conduct
statute
place the minor child with the
make other efforts to
or to
case;
father, given
unique
this
respondent
circumstances of
(3)
duty
mitigated by
any legal
whether the existence of
agency
respondent
for over one
father’s failure to contact
year,
pursue
his child who had been
visitation with
failure to
care,
placed
convictions
in foster
or his domestic-violence
(4)
mother;
involving
whether the failure of the
the child’s
proceedings to the correct
family
notices of the
court to send
address,
Department of Human Services to
the failure of the
diligent
father at the
efforts to contact the
make
telephone
provided
at the June
number
him
address and
mother, pre-
hearing
adjudication
parental
terminating respondent father’s
cluded the court from
(2008).]
Rood,
rights. [In re
Opinion
Corrigan,
convincing
and,
clear and
evidence
where appropri-
ate,
the court’s
regarding
decision
the child’s best
In
interest.”
re
462 Mich at
“A
Trejo,
finding
356-357.
is
‘clearly erroneous’
is
although
[if]
there
evidence to
it,
support
reviewing
court on the entire evidence is
left with the
and firm
definite
conviction that a mistake
Miller,
has been
re
331, 337;
made.” In
433 Mich
(1989)
omitted).
NW2d 161
(quotation marks
Whether
with a
complied
party’s right
due process
presents
question of constitutional
law
we review
Treasurer,
de novo.
Wayne
503,
Sidun v
Co
481 Mich
(2008).
508;
DISCUSSION
I. CONSTITUTIONAL PARENTAL RIGHTS
A natural
has a
liberty
fundamental
interest
care,
“in the
custody,
management”
his child that
protected by
the Fourteenth
Amendment
Constitution,
United States
455 US at
Santosky,
1, 17,
§
Constitution,
article
of the Michigan
see
v Bay
Judge,
341-342;
Reist
Co Circuit
396 Mich
(1976)
J.)
241 NW2d
(stating
that parents
(LEVIN,
and children
“in their
have fundamental
mutual
support and
As the
society”).
Supreme
United States
in Santosky,
Court stated
Opinion by Corrigan,
J.
DUE PROCESS
II. PROCEDURAL
is whether
Here,
question presented
the primary
proce
to
right
actions satisfied
state’s
require
the most basic
due
We reviewed
process.
dural
in
v Michi
due
Dow
process
procedural
ments of
(1976):
205-206;
192,
Opinion Corrigan, interest, safeguards; finally, Government’s dural including and the fiscal and admin- the function involved proce- or burdens that the additional substitute istrative requirement entail. dural would Brock, 442 Mich at Mathews. quoting See also In re IN PROTECTIVE PROCEEDINGS MICHIGAN III. CHILD ensure due Michigan, process In procedures child from the home facing removal of his are set forth parental of his termination statute, rule, procedures, policies court DHS discussed below. federal laws various *17 A FROM HIS HOME A. REMOVING CHILD RULES MICHIGAN STATUTES AND COURT 1. Probate Code of 1939 Michigan’s
The sections of
(the
et
Code), MCL 712A.1
Juvenile
governing juveniles
overarching goals;
guided by
following
the
are
seq.,
liberally
so that each
chapter
This
shall be
construed
jurisdiction
coming
the
receives the
juvenile
within
court’s
care,
control,
own
guidance,
preferably in his or her
and
home,
best
juvenile’s
the
welfare and the
conducive to
juvenile
removed from the
the
If a
interest of
state.
parents,
juvenile
placed
shall be
of his or her
control
equivalent
care that should
nearly
possible
as
to the
care as
juvenile by
parents. [MCL
given
his or her
have been
added).]
712A.K3) (emphasis
Rules,
Michigan
Court
which
3.900
Subchapter
involving juveniles, espouses
proceedings
covers
goals.17
derived
statutorily
same
home, as
A. from her
Here,
the court
removed
712A.2(b)(l),
Code,
MCL
by the Juvenile
authorized
MCR
3.902(B).
When the DHS petitions for removal of a child under 712A.2(b), MCL the court must hold a preliminary hearing hearings may and authorize the petition provide rights The Juvenile Code and court rules similar to those of parents guardians legal and custodians. We omit references guardians legad brevity custodians here for the sake of and because only parentad rights are at issue. 19(5)(c); 712A.19a(4)(c); 712A.19b(2)(c); MCL 712A. MCL MCR 3.921(B)(1)(a) (3). (d), (2)(c), *18 20 3.965(B)(1). MCR 21 712A.17c(4) 3.915(B)(1). (5); protective MCL and In MCR a child proceeding, petitioner, child, respondent, parent parties. the are “ 3.903(A)(18). mother, , both, MCR ‘Parent’ means the the father ... or 675(2) (“The 3.903(A)(17); ‘parents’ of the minor.” MCR cf. 42 USC term biologiced adoptive parents legal guardians, means or or as determined law.”). applicable “Respondent” specifically State is not defined for the purposes protective proceedings stage, of child until the termination (1) generally adoptive when it “includes the natural or mother of the (2) 3.977(B). [and] child the father of the child ....” MCR 95 In re Opinion by Corrigan, J. that 1 or more of the cause showing probable of “upon and fall within the are true allegations petition the 712A.13a(2). 2(b)...MCL of section provisions MCL 712A.13a and hearing governed preliminary hearing, At the of MCR 3.965. provisions corresponding removal, it petition not dismiss the if the court does may impose any parent child to a may release the child’s the necessary protect conditions terms and If the child is well-being.22 and mental physical home, juvenile order the “the court shall returned to his consis family-like setting most available the placed 712A.13a(10). To needs.”23MCL juvenile’s tent the the . . end, inquire parent. the “court must of this the child who of relatives of identity the regarding If the care. the father of provide be available to might identified, inquire the court must child has not been identity whereabouts regarding the mother 3.965(B)(13). must permit The court father.” MCR time” frequent parenting have juvenile’s parent “the to the may if be harmful visits, supervised, “even unless 712A.13a(11).24 harm may If be MCL visits juvenile.” of, must order a evaluation ful, psychological the court for, may suspend parenting child and counseling or counseling place.25 takes time until the evaluation and before days placement, 30 of the child’s Within in a disposition pro- order of may enter an the court 2(b), agency petitioning § under ceeding —here 3.965(B)(12)(a). 712A.13a(3); MCR MCL 3.965(C)(2). MCR See also 3.965(C)(6)(a) (“Unless suspends parenting the court also MCR See 712A.19b(4) petition to terminate pursuant [because a to MCL time filed],... permit each parental rights court must has been time, supervised, parenting frequent parenting . unless even time .. added). child.”) (emphasis may to the be harmful 712A.13a(11).
96 483 MICH73 Opinion CoRrigan, J. DHS26—must provide an initial plan.27 service agency must what report efforts were made and what provided, any, services were to prevent removal or to rectify conditions that caused removal.28 The child’s placement continued must be “in the family-like most setting available and in as close proximity to the child’s parents’ home as is consistent with the child’s best 712A.18f(3). special interests and needs.” MCL part As agency statutorily is required “identify, ISP locate, and consult with relatives to place- determine ment with a fit and appropriate relative who would emotional, meet the child’s developmental, and physical needs as an alternative to foster care.” MCL 722.954a(2).29The ISP also must detail the efforts to be made and services to be offered to facilitate the child’s return to his home permanent or other placement and “regular schedule for and frequent parenting time between the child and parent” his or her parent- unless ing time would be harmful to the child. MCL 712A.18f(3) (4).
2. THE CHILDRENS FOSTER CARE MANUAL
State and federal law require
promulgate
the DHS to
rules, policies, and
carry
instructions to
out the statu-
tory mandates.30 The DHS Childrens Foster Care
26
case,
applied
“agency”
“public
private
As
to this
is the
or
organization,
institution,
facility
responsible
...
under court
arrangement
juvenile’s
supervision.”
order or contractual
for a
care and
3.903(C)(1).
712A.13a(l)(a);
MCL
see also MCR
27
712A.18f(2)
712A.13a(8)(a);
3.965(E)(1).
(4);
MCL
MCL
MCR
3.965(D)(1).
712A.18f(l);
MCR
29 Indeed,
explicitly
that,
require
preliminary
the court rules
at the
hearing,
agency
identify
the court “shall direct” the
and consult with
722.954a(2).
3.965(E).
pursuant
relatives
to MCL
MCR
712A.13a(8).
1356.21(g);
711.128;
45 CFR
MCL 722.111 to
cf. MCL
In re Opinion by Corrigan, J.
(which
“CFF”)31
agency
Manual
refers to
as
guides the creation and
of a
implementation
service
671(a)(16)
required by
42 USC
plan,
USC
675(1). Consistently
directives,
with the statutory
*20
DHS “requires
engagement
family
the
of the
in devel-
of
opment
plan,”
the
service
“all
including
722-6,
.
parents/guardians
..
CFF
1
in
p
(emphasis
original).
encouraged
actively
“Parents must be
to
participate,”
and the foster care worker must make
attempt
“an
or efforts to
identify
locate absent
parent(s)/legal guardian or
putative father.” Id. at
(emphasis
original).
in
“The participation
parents
family/relative
and members of the extended
network is
achieving
viewed as essential to
and is
permanency
to
actively sought.”
be
Id. at 3. The
plan
service
must
parent(s).
“[w]hat
address
the
. . must do to achieve
reunification” and
the supervising agency
“[w]hat
must
do
support parental objectives.”
Id. The foster care
meet
parent”
worker must
with “each
face-to-face in
the parent’s
by phone
specified
home and
at
intervals
during the
in
pendency
placement
child’s
foster
care. Id. at 5-6. The
also “must
agency
parenting
use
<http://www.mfia.state.mi.us/olmweb/
The CFP is available online at
(accessed
2009).
18,
Only
March
the current version is available
/ex/html/>
and, although
case,
quoted
parties
the CFF is
in briefs in this
the
have not
provided
during
the
with
Court
the version of the CFF in effect
the
proceedings
Although
subjected
in this case.
the
CFF has
been
to the
requisite
period,
required
notice and comment
which is
before such manuals
by Michigan courts,
are afforded deference
it is nonetheless consistent with
during
provides helpful insight
the statutes in effect
the
procedures
requires employees
complete practice
into the
that the DHS
statutory
Further,
requirements.
up-to-date
may
to fulfill the
the
version
be
helpful
parties
challenges
for courts and
faced in the future with
like the
Young’s
presented
But,
contention,
contrary
ones
this case.
to Justice
post
failing
comply
explicit
at
we do not fault DHS staff for
with
provisions
fulfilling
of the CFF that were not in effect or not central to
the
statutory
during
pendency
mandates
of this case.
time to maintain and strengthen relationship be- and child.” at (emphasis original). tween Id. “Parenting provided every parent time must be for legal child, to the right regardless prior custody.” Id. regard parents,
With to the services offered to only CFF advises: “It is explicitly timely when provided agencies intensive services are to families that and courts can make informed decisions about parents’ ability protect and care their children.” CFF 722-6, p explains 11. The CFF in part services underlie the “reasonable efforts” which the DHS engage must both reunify to avoid removal and to family. child with his Id. at 16. “If reunification is the permanency planning goal, the court must consider agency whether efforts supervising reunify a family cases, are reasonable “In ....” Id. at 16. all supervising agency’s planning service must include the parent(s) (except parental when have been ter- *21 minated) “absent,” . . . .” Id. If a parent the DHS (APP) must consult the Absent Parent Protocol “to ensure DHS .. and workers . the courts address the absent parent early possible issue as as in child protec- tion Id. at proceedings.” 17.32 32 <http:// current version of the APP is available at (accessed conrts.michigan.gov/scao/resources/standards/APEpdf> March 2009). parent including legal parent The APP defines an absent §B(3)(b), p whose whereabouts are unknown. 5. The APP is a APE (PIPs) component program improvement plans developed of state in response federally pro of reviews the state’s funded child welfare grams. The PIPs aim to correct deficiencies cited in the United States Department Family of Health and Human Services Child and Services (CFSR) Noncompliant programs review and Title IV-E review. cause a significant funding. loss of federal See the discussion of Title IV-E (PIP) opinion; Michigan Improvement funding part Plan IV of this Review, Family Independence Agency, Title IV-E Children’s Servi ces, 1, 2004, p <http://www.michigan.gov/documents/ November 3 (accessed 18,2009); Michiga4_123388_7.pdf> Depart- March United States 99 In re ROOD Opinion by Corrigan, PERMANENCY PLANNING
B. AND COURT RULES 1. MICHIGAN STATUTES days.33 90 updated every must be plan The service 182 must review the case within generally The court every days thereafter days of the child’s removal At each review year placement.34 the first during with the compliance the court must evaluate hearing, and the “extent the child’s plan service alleviating mitigating made toward progress to be in foster placed that caused the child conditions 712A.19(6) (7). may The court .. .” MCL care. or actions to be taken that additional services prescribe rectify the that caused the “necessary to conditions are to remain in foster to be in foster care or placed child 712A.19(7)(a).35 care.” MCL care and parental
If a child remains foster terminated, the court must conduct have not been hearing year within one planning permanency hearings are Permanency planning child’s removal.36 MCR 3.976. Under by MCL 712A.19a and governed reunify 712A.19a(2), efforts “[reasonable MCL Services, & Administration for Children ment of Health and Human Family Reviews Fact Bureau Child and Services Families, Children’s <http://www.acf.hhs.gov/programs/cb/cwmonitoring/recruit/ Sheet (accessed 18, 2009); PIP General March cfsrfactsheet.htm> Information CFSR], 24, 28, <http://www.michigan.gov/documents/FIA- [Michigan pp 2009) (accessed (noncompli- March CFS-PIP-Narrative_106409_7.pdf> resulted, necessary, part requirements and APP is ance with federal CFSR planning process engaged even when “[Qathers were not in the case because “[d]iligent efforts were not known” and because their whereabouts were father”). made to find an absent 712A.18f(5). MCL 3.975(C). 712A.190); 3.966(A)(2); MCR MCR *22 35 (G). 3.973(F); 3.975(A), (F), See, generally, and MCR MCR 36 3.976(B)(2). 712A.19a(l); MCR MCL 483 MICH73 Opinion by Corrigan, family child and must except be made all cases” those involving aggravated present circumstances not here.37
At the permanency planning hearing, the court shall progress being review “the made toward the child’s why return home or to the child should not show be in the placed permanent custody of the court.” MCL 712A.19a(3). If the court determines that the “return of the child to his or her parent would cause a life, substantial risk of harm to the physical child’s health, well-being, or mental the court shall order the 712A.19a(5). child returned to his parent.” or her MCL making determination, When this the court “shall view parent the failure of the substantially comply the terms and plan conditions of case service ... as evidence that return of the parent child to his or her would cause a substantial risk of harm ... .” MCL 712A.19a(5).38Under the version of MCL 712A.19a in effect during proceedings case, this if the court determined that the child should not be returned to his parent, required the court was agency to order the proceedings initiate to terminate parental rights unless termination clearly not in the child’s best interests. If interests, termination was not in the child’s best court could consider permanent placement, alternative including ongoing foster care.39 unnecessary parent Reasonable efforts toward reunification are if a abandonment, caused or created an unreasonable risk of the serious physical abuse, 712A.19a(2)(a); or sexual or death of a child. MCL MCL 722.638(1) (2). unnecessary parent’s Such efforts are also if the sibling terminated, involuntarily to the child’s were MCL 712A.19a(2)(c), felony resulting or if the was convicted of assault injury committing aiding murder, attempted murder, or of or in the voluntary manslaughter sibling, of the child or the child’s MCL 712A.19a(2)(b). 3.976(B)(1). See also MCR 3.976(E)(1). See also MCR 712A.19a(6) 3.976(E)(2) (3). (7); Significantly, MCR July 11, 2008, longer required effective termination are no *23 In re Opinion CORRIGAN,J. MANUAL FOSTER CARE
2. THE CHILDRENS “di- normally is that reunification The CFF notes the child was from which the home toward rected may shift indicated, the focus but, “where removed” 722-7, 2. The p CFF home.” parent’s the non-custodial to com- care worker the foster requires CFF current needs of family plete assessment/reassessment needs the presenting “to evaluate forms strengths the legal right with a household strengths each of added). if a But children)” 722-8a, 1p (emphasis CFF for more located, is incarcerated to be is “unable (2) an assess- to participate, or refuses years two than end, To this Id. completed.” have to be ment does not he that to document required worker is legal right parent(s) with a diligent completed a search children) [Client through things as statewide such Secretary of System] inquiry, Management Information books, Office telephone US Post inquiry, search State hy friends and search, up provided on leads follow address been unable relatives, etc. and has legal publication, mailings from respond [sic] parent(s) has locate. The 722-8, p 6.] [CFF the worker. OF PARENTAL RIGHTS TERMINATION
C.
MCL
hearing,
to a termination
case proceeds
If the
may
court
that
provide
3.977
and MCR
712A.19b
if
court finds
his child the
rights to
parent’s
terminate
one or more of
convincing evidence
clear and
here,
is
If,
termination
met.40
as
criteria are
statutory
family,
time
with the
child’s
consistent
provided the
"state has not
considers
plan,
the state
with the services
period
case service
in the
home,
if reasonable
to his or her
necessary
return
for the child’s safe
712A.19a(6)(c),
by
IV FEDERAL LAW The processes for removing a child from his home and a terminating parent’s rights governed are also by federal statutes and regulations. Title IV-E establishes federal to funding support state systems foster care and funding conditions on compliance with federal require- ments.44 The record reflects —and the parties do not 41 supplemental petition A parental rights “seeks to terminate the of a already jurisdiction over a child within the of the court on the basis of one or more circumstances new or different from the offense that jurisdiction.” 3.977(F). led the court to take MCR 42 3.977(F)(1). 712A.19b(1); MCL MCR 43 July 11, 2008, 712A.19b(5), Effective by as amended 2008 PA 199, provides: now grounds “If the court finds that there are for parental rights termination of parental rights and that termination is of interests, in the child’s best the court parental shall order termination of rights and order that additional efforts for reunification of the child with added.) (Emphasis not be made.” 44 1356.21; 1356.50; see, 45 generally, 670; CFR 45 CFR 42 USC 42 USC substantially 671. Title IV-E by was Adoption enacted and revised (ASEA), 105-89, and Safe Families Act of 1997 PL 111 Stat 2115. The Fostering Increasing Adoptions Connections to Success and Act of which case, was enacted after the provides relevant in this support adoptions additional financial kinship for guardianships and and requires by notify additional efforts states to and work with the extended families of children who have been removed from their homes a result neglect. 110-351, 101, 103, §§ of abuse or PL 3950-3953, 122 Stat 3956. In re
Opinion Corrigan, Title designated A.’s placement dispute —that significant are requirements Title IV-E funding. IV-E funding federal rely on states, including Michigan, choose Because we programs. child welfare support to fed- with the noncompliance funding, federal accept funding losses in substantial results eral scheme comply in order to Accordingly, penalties.45 financial enacts Legislature our requirements, federal with federal scheme46 mirror the statutes to amends state excep opinion, some in this with referred to The federal statutes 674(d)(3)(A), Congress’s pursuant tions, e.g., were enacted 42 USC result, Const, I, 8,§ because the rules power, cl 1. As spending US art ” interest’ ‘to the federal are not “unrelated forth in these statutes set 2793; 203, 207; Dole, statutes, 107 S Ct Dakota v 483 US South these (1987), comply rules in order to with these the state must L Ed 2d 171 of this funding indicated in note 32 accept these statutes. As under requirements. compliance with federal opinion, are reviewed for states to be in substantial a state is found not 1356.71. When See also CFR funding be “disallowed” and must compliance, portion its federal is of 1356.71(h) interest, government 45 CFR repaid to the federal penalties, 1356.86. may 45 CFR (j), be assessed financial and the state DHS, empowered branch, acting through The executive help accept finance or Michigan aid in order federal Constitution 3, § the 1963 statutorily Article defined functions. its execute provides: Michigan Constitution any law, political general Subject provisions this state or authority any thereof, any combina- governmental subdivision agreements performance, may for the *25 into thereof enter
tion
financing
functions,
any
respective
one
with
of their
or execution
States,
states,
Dominion of
the
the United
more of the other
or
Canada,
otherwise
any political
thereof unless
subdivision
or
provided in this constitution.
protection
undisputed
the
“functions” is
the DHS’s
Because one of
agreement
the
an
with
children,
properly entered into
DHS has
the
funding
accept the
at issue here.
government
to
federal
46
many parallel provisions,
are
just
example
which
As
one
discussion,
Legislature amended MCL
the
generally
from our
evident
comparable
closely resemble the
2008 to more
in 2004 and
712A.19a
instance,
recently,
200;
PA 473. Most
provisions.
PA
2004
2008
federal
6(c)
one,
added subsection
104
the requirement
circumstances,
under most
states
must make “reasonable efforts ...
to preserve and
unify families” in order both to prevent a child’s re-
moval from his home and
it possible
to make
for the
child
safely
return
to his
home.
USC
671(a)(15)(B). Further,
states must “consider giving
preferencé to an adult relative over a non-related car-
egiver
determining
when
a placement
child,
for a
pro-
vided that
the
caregiver
relative
meets all relevant
671(a)(19).
State child protection
standardsf.]”
USC
For each child in
care,
foster
the state’s case service
plan
include,
must
among other things, “services ...
parents, child,
the
and foster parents in order
im-
prove
conditions in the parents’ home, facilitate
return of the child to his own safe home or
perma-
placement
nent
of the child .. . 42
675(1)(B);
.” USC
see
675(5)(E)(iii)
provide, consistently
that statute to
with
USC
and 45
1356.21(i)(2)(iii),
CFR
required
that a court
parental
is not
to terminate
provided
family,
if the “state has not
the child’s
consistent with the
period
plan,
time
in the case service
with the services the state considers
necessary
home,
for the child’s safe return to his or her
if reasonable
required.”
efforts are
appropriations
also child’s in to ensure that each system,” part review “case in a safe “designed placement is to achieve plan service like) (most family is the least restrictive setting and in close setting available appropriate and most home, the best consistent with parents’ to the proximity . . USC needs of the child. special interest and 671(a)(16). The case review 675(5)(A); 42 USC see also are safeguards that procedural also must ensure system rights pertaining respect parental “with place parents, from the home of his the removal of the child determi- any and to change placement, a the child’s parents[.]” affecting privileges nation visitation 675(5)(C)(ii). that appro- The state must ensure USC reflected are As is now priate provided. services 712A.19a(6)(c) PA by 2008 of MCL recent amendment parental rights to terminate required is not court child, family to the provided has not “the State plan, time in the State case period consistent with the the safe necessary deems for services as the State such home.” 42 USC the child to the child’s return of 1356.21(i)(2)(iii). 675(5)(E)(iii); see also 45 CFR out these Regulations Federal fleshes The Code of 45 CFR significantly, most Perhaps requirements. 1356.21(b) provides, part: efforts to maintain
The State must make reasonable
unnecessary
a child
prevent the
removal of
family unit and
safety
home,
long
is assured
as the child’s
from his/her
family
child and
reunification of the
to effect the safe
[and]
(if
necessary
ensure
placement is
temporary out-of-home
child)....
safety of the
the immediate
mirrored
1356.21(g),
Further,
45 CFR
1 that a case
712A.18f(3),
in subsection
prescribes
par-
jointly with
“developed
must be
plan
service
entis)
care,” in
in foster
of the child
guardian
subsection 3 that it “[i]nclude must a discussion of how the case plan designed placement achieve safe *27 (most the child in the least family-like) restrictive setting available and in proximity close to the of home the parent(s) when the case plan goal reunification,” is subsection that it must “[i]nclude a description of the services offered and provided to prevent removal of the child from the home and reunify the fam- ,”48 ily... Young’s
Finally, respond we to Justice contention that we “advance a novel interpretation of federal law” by concluding that the federal conveys scheme substan- rights. First, tive Post at partial aside, 128-130. as a we disagree implication with his may this Court address an unresolved question of federal when law that question bears on the outcome of a case under our jurisdiction. We are not precluded deciding from an merely issue because federal circuits disagree the 48Wenote that the DHS Governor Jennifer Granholm entered into agreement stemming a settlement from a class action lawsuit in federal alleging Michigan district practices. court deficiencies in child welfare Granholm, (ED Dwayne B Mich), v August Case No 2:06-CV-13548 filed 2006. The text settlement available at <http://www.michigan.gov/documents/dhs/DHS-LegalPolicy- (accessed ChildWelfareReform-Settlement_243876_7.pdf> March 2009). Notably, guided part by following principle: settlement is place “The ideal family. for children is in their own home with their own safety home, family place When DHS cannot ensure their in the it must family-like children in the most setting required and least restrictive unique Settlement, II.D, meet p § their needs ... .” 3. The section of the pertaining plans requires settlement parent(s) “[i]f service child(ren) sign plan, are not available or decline to the service and/or plan explanation steps shall include an taken to involve them and identify any follow-up shall participa actions to be taken to secure their Settlement, VILA, § tion in p agreement services.” directly 20. The is not us, however; relevant to the alleged case before it resulted from the comply applicable failure of the DHS to laws and was entered 24, 2008, federal district court on October after the relevant events in this case. In re
Opinion by Corrigan, has to resolve yet Court Supreme United States at 128-129. Most post the circuits. See among conflict however, discussion of Young’s Justice significantly, of action rights creating private rights substantive case, on this which 42 USC 1983 does not bear under statutory a federal does not seek to enforce respondent Rather, action. way of a civil private provision in the state’s error rooted procedural claims and federal processes with the state comply failure to Thus, do not con- termination cases. we mandated for create substantive the federal statutes clude that question. in on this weigh need not rights; we in question; at stake is not underlying right substantive to the constitutionally protected right it is respondent’s Rather, hold that his child. we custody care and in an claim error may certainly procedural if the right terminate this brought by the state to action *28 procedures comply required fails to with state to have affected the outcome may its failure be said the case.
V APPLICATION TO THIS CASE
A. FACTS Here, regula- the relevant laws and compliance with regard respondent. with sorely lacking tions was the court is hearing, Beginning preliminary with identify and consult to “direct” the DHS required the statu- relatives, 3.965(E), consistent with MCR with 722.954a(2). It must also deter- mandate in MCL tory notified”; the . has been parent.. mine whether “the if the in the absence of the hearing may proceed attempt give if a notified or “reasonable parent was 3.965(B)(1). case, In this notice made.” MCR was only hearing reflected following preliminary order that notice “was opaque court’s determination 483MICH73 Opinion by CoRrigan, J. given required by law.” record does not reflect identify that the court directed the DHS to relatives or any findings regard made to whether reasonable attempts notify respondent. were made to August hearing,
Next, before the
2007 termination
hearings, beginning
prelimi-
held
court
six
with the
nary hearing April
ending
20, 2006,
on
with the
permanency planning hearing
1,
on March 2007. Notice
respondent’s
only
was sent to
current address for
one hearings:
dispositional
8, 2006,
these six
hearing.
the June
Yet
submitted his Manistee Street
any
hearings
address to the DHS before
took
place.
again provided
Further, he
this address to the
court on June
but the court continued to use the
Although
inaccurate 10th Street address.
at least two of
the court’s notices mail to the 10th Street address
undeliverable,
were returned as
there is no evidence of
follow-upmeasures to locate a correct address. To the
responsible
updating
extent that
the DHS was
respondent’s
information, the DHS had
correct
on
address
file and the court used this address
in June
2006. Yet the court reverted with-
successfully
explanation
and,
out
to the 10th Street address
at least
respon-
until December
Patterson concludedthat
dent’s whereabouts were unknown on the basis of a
single phone
Kops,
call to
from whom
estranged
apparently hoped prevent
and who
contact
respondent.
between A. and
regard
With
to the efforts of the DHS to involve
respondent,
prepared
April
the ISP Patterson
for the
*29
hearing
respondent’s
20, 2006,
reflected
correct address
father,
and his status as A.’s
but stated that he was
“unwilling”
participate
plan.
to
in the service
Yet the
testimony
ISP also confirms Patterson’s
that
did
she
respondent
preliminary hearing
not contact
before the
In re 109
Opinion Corrigan, J.
household. Each
about his
had
information
and
no
to the court
plan
report
service
subsequent updated
“unwilling”
similarly
respondent
stated
also reflected
The USPs
participate.
to
“refused”
form to
family assessment
complete
not
a
Patterson did
house
respondent’s
of
strengths
evaluate the needs
him as
characterized
hold,
because she
presumably
re
consistently
The USPs
refusing
participate.49
respondent.
had no contact with
flected that Patterson
beyond
him
efforts to contact
They did not detail
July
in
Kops
calls to
Patterson’s unfruitful
Re
“Kinship
on
The USP sections
January 2007.50
that efforts were
stated
simply
and Placement”
sources
relatives because
with
placement
made to obtain
. .”
relatives ..
appropriate
are no
“[t]here
ADEQUATE
DID
PROVIDE
B. THE STATE
NOT
PROCESS
PROCEDURALDUE
facts,
opinion
find this Court’s
these
we
light
In
decision
Court’s
Supreme
United States
Sidun and the
L
Flowers,
1708; 164 Ed
220;
US
126 S Ct
v
Jones
the due
(2006),
Each case involved
instructive.
2d 415
household;
Kops’s
assessed
The USPs reflected that Patterson
pertaining
were left
household
sections
assessment
that,
trial,
with
if she had been in contact
Patterson testified
blank. At
study
process,
a home
she would have ordered
earlier in the
Thus,
placement
him.
the forms and
appropriateness of
with
to assess the
pending appear
consistent
practices
the DHS while this case was
family
CFF,
form “to evaluate
states that a
assessment
the current
which
right
legal
strength
presenting
of each household with
needs and
child(ren)”
partici
completed
“refuses to
unless a
must be
722-8a, p
pate
1.
....” CFF
16, 2007,
January
period
disturbingly,
the USP for
Somewhat
16, 2007,
in-person
between
appears
fictional
contact
April
to reflect a
Following
entry
January
2007.
this
on
Patterson and
wrote,
participating in
log,
“Mr. Rood is not
Patterson
the contact
required
him I am
had contact with
but
this
has not
services so
worker
complete my report.”
something to
enter
*30
process rights property of real owners whose property cases, was foreclosed In here, state. both state’s at attempts notice mail were returned un- claimed. unclaimed, When notice is returned adequacy government’s of the efforts will be evaluated light it actions takes after it learns that its
attempt
“[W]hen
at notice has failed.. ..
mailed notice of a
unclaimed,
tax sale is returned
the State must take addi-
steps
attempt
provide
tional reasonable
notice to the
property
selling
property,
practi-
owner before
his
if it is
[Sidun,
Jones,
quoting
cable to do so.”
In the county treasurer’s follow-up measures were insufficient when notice mailed to one address was returned unclaimed and the treasurer failed attempt to contact the owner at a second address recorded on the deed in the possession. Sidun, treasurer’s 481 Mich at 513-515. Because the treasurer had the owner’s “address at hand but failed to mail notice to her at that address,” the treasurer failed to afford her “minimal due process.” Id. at 515. here,
Similarly the court and the DHS had respon- dent’s Manistee Street address on hand from the time proceedings began in March 2006. There is no excuse address, for their failure to use this particularly before December when Patterson’s mail addressed to Manistee Street was returned for unknown reasons. Indeed, to some extent this failure is even egre- more gious Sidun, than the one in in which it was less obvious that the second address on the deed belonged to in question. Here, owner Id. at 513-514. the court and the DHS were aware that the address was both that of respondent up-to-date, he provided since it in March and June 2006 and the court used it successfully notify respondent 8, 2006, of the June hearing. In re Opinion by Corrigan, a proceeding does not involve Although this case are holdings of Jones and Sidun against property, rights. As involving parental in proceeding instructive held, parent’s Court has Supreme the United States precious “is interest far more in his child an interest 758. 455 US at right.” Santosky, any property than ERRED THE TRIAL COURT CLEARLY C. *31 the failures of notice court excused
The trial
to con-
failure
by noting respondent’s
communication
initial call to
the court after his
tact
the DHS or
23, 2006,
he attended the
or after
Patterson on March
to credit
8, 2006,
The court refused
hearing.
June
that,
hear from
he did not
testimony
when
respondent’s
23, he
that
March
assumed
the court or the DHS after
rather,
the court “as-
to Kops;
A. had been returned
was] still
impression
[A.
under the
that
he was
sum[ed]
respon-
did
credit
The court also
in foster care.”
A.
to seek visits with
claim that he declined
dent’s
of A.’s life.
bouncing in and out
he feared
because
simply
respondent
that
Rather,
the court concluded
liability
support payments.
for child
wished to avoid
clearly
erred
that
the trial court
We conclude
sufficiently responsible
was
respondent
that
ruling
excuse the state’s
participation
lack of
his own
First,
ongoing proceedings.
him of the
failures to inform
of A.’s initial
aware
although respondent
generally
was
of ne-
admission
Kops’s
care and
foster
placement
that A. had been or would
assumption
glect, his stated
and, indeed, was
Kops
was
be returned
reasonable —
January
notified in
successfully
he was
correct —until
time,
until
proceedings;
2007 of the termination
reunification
was
goal
express
correctly con-
Second, although the court
with Kops.
sup-
child
formally paid
never
cluded that
Accordingly,
removal after the fact and
had actual notice of A.’s
respon-
one dispositional proceeding,
received notice of
ongoing proceedings,
of the
dent received no notice
DHS, or the
available from the
services and evaluations
in a
could be at stake
parental
rights
fact that his
words, although
In other
he
against Kops.
case
neglect
allegations
had
notice of A.’s removal and
actual
notice
did he receive actual
against Kops, by no means
proceedings
import
of the full nature
notice of the
rights. Subsequent
to his own
regard
of counsel
petition
appointment
termination
due
when
process
are insufficient to afford
he had not
were terminated in
because
part
and when the
in the earlier
participated
in order for
adjourn
refused to
trial court
in services and be evaluated
meaningfully participate
cannot fail to
caregiver for A. The state
appropriate
an
*33
Further, it is for this reason that the trial court erred when it excused the court’s failures of notice on respondent’s the basis of lack of contact with the respondent willfully court and the DHS. Even if failed up to follow with the DHS or the court in the neglect effectively he did not
proceeding against forfeit Kops, parental rights his constitutional at a later termina- proceeding by doing explained tion so. As against him earlier, his failure to seek visits with A. or to volun- tarily provide monetary support during proceed- ings certainly additional evidence of his own neglect daughter. showing neglect, of his But a merely triggers parent’s right participate alone, automatically justify in services. It does not termina- expressed 712A.19b(3)(g), tion. As in MCL when a parent provide proper custody fails “to care or for the appropriate child,” termination is unless “there is [also] expectation no reasonable that the will provide proper custody be able to care and within a considering age.” reasonable time the child’s Because properly was neither informed about nor offered the evaluation and services available to aid making the court in the latter determination, his rights merely could not be terminated because of his provide custody. failure to care and D. THE ERRORS AFFECTED RESPONDENT’S SUBSTANTIAL RIGHTS directly
Thus, the state’s failures of notice
affected
substantial
because his lack of
participation
in the earlier
and service
In re Opinion by CORRIGAN,J.
*34
meaningfully
from
consider
prevented the court
plans
capable
caring
could become
ing
respondent
whether
Although
reasonable time.
he was
for his child within a
notice,
in
of his lack of
his
certainly neglectful,
light
a
of his
to
did not constitute waiver
participate
failure
essen
rights, as the trial court
parental
constitutional
have cre
only
Full notice not
would
tially concluded.
meaningfully
for
to
opportunity
respondent
ated the
services,
in
but
participation
or decline
participate
gather
have allowed the DHS and the court
would
termination deci
necessary
facts
to the court’s
other
only
not
was
instance,
regard
support,
For
with
sion.
contribution,
monetary
pursued
never
for a
respondent
that,
she had no con
Patterson admitted
because
but
him,
verify
to learn or
opportunity
she had no
tact with
Perhaps
as diapers.
that he
A. with items such
provided
appro
termination
most
the court found
significantly,
it
in
because
712A.19b(3)(g)
part
under MCL
priate
in
absence
that,
light
respondent’s prior
in
concluded
life,
emotionally if returned to the
A.’s
A. “would suffer
had not been en
respondent
care.” Yet
life;
lived
actuality,
from A.’s
he
with
tirely absent
him only
her
and she had last seen
three
her after
birth
removed to foster care. Assess
months before she was
reunifying
and services aimed at
respondent
ments of
direct
provided
him
his
would have
daughter
with
and its
concerning
relationship
po
their
information
respondent
But because
tential emotional harm to A.
evaluated,
merely
left to
assume
not
the court was
was
would be emotion
relationship
respondent
that a
with
so,
effectively
In
the court
ally
doing
harmful
to A.53
that,
evaluating
point
termination was
On this
we note
whether
respon
interests,
contrary
her bond to
A.’s best
the court contrasted
opining
respondent
parents,
her
to her foster
dent with
bond
developed
“virtually stranger,”
to her
A. had
an attachment
whereas
stability
continuity
surrogate parents
experienced
in care. Yet on
Opinion Corrigan, punished past neglect by presuming, for his favor, neglect in the state’s would Thus, essentially harm his child the future. the court burden prove grounds relieved the state of its convincing termination clear and evidence and de- prived 712A.19b(3)(g)— the second clause of MCL that, which the state to show requires despite past care neglect, appropriately could for his any meaning.54 child in a reasonable amount of time —of June 2007—less than three months before the termination hearing original family had been transferred from her foster to a —A. family. family appears family second foster new be the same with Kops which left A. in so A. was somewhat familiar them. It is noting family adopt worth that the new foster also wishes to A. and her stability relationships half-sister. But the court overstated of A.’s *35 Moreover, only while in foster care. the court could have reached the question whether A.’s best interests were better served her foster family properly grounds respondent’s had it first found to terminate if 712A.19b(5). rights. Krugh, 97, 115; MCL See also Fritts v 354 Mich (1958): NW2d 604 totally inappropriate weigh advantages It is of a foster against legal parents. home the home of the natural and Their parents neglect question fitness as and of of their children must be by statutory any particu- measured lar alternative home standards without reference to may [to child]. be which offered respondent “stranger” To whatever extent should be considered a to the child, paramount rights legal require his as a natural and father meaningful, independent findings concerning prior whether their lack of relationship harm, 712A.19b(3)(j), prevent would cause her MCL him providing “proper custody from care and within a reasonable time considering age,” 712A.19b(3)(g). the child’s presume conceivably parent’s We that a court could conclude that a preclude extended absence from his child’s life would reunification appropriate age. may within a time frame to the child’s But the court not circumstances, respondent’s assume this fact under these in which lack prior participation significantly of was attributable to the state and participation generated point; would have direct information on this professional child-parent state would have a conducted evaluation of the relationship potential and its harm to A. In re Opinion by Corrigan, a in the Employing presumption such state’s favor is when inappropriate respondent was not notified of his and, to be opportunity placement evaluated for there- fore, may he participate be faulted for his failure to Indeed, resulting gaps or the factual in the record. part respondent because claimed to care for another child of similar age, assessments and services had some to reveal potential respondent provide could a safe home A. in a reasonable amount of time.
The court also found appropriate termination under (the both MCL 712A.19b(3)(g) (j) latter subdivision likelihood, requiring finding of a “reasonable based on capacity the conduct or of the child’s that the parent, child will be harmed he or she is returned to the home parent”) respondent because had been convicted felonies, domestic including against Kops. abuse Significantly, the court “no one opined that knows” whether no had longer “propensity ... added.) be involved in criminal (Emphasis behavior.” only Yet the direct evidence presented point on this weighed favor. It undisputed respondent had never been accused of a child. harming Further, Marshall testified that he was staying out of trouble and had never abused Marshall. He and Marshall successfully also both testified that he child, M., young daily cared for a on a basis. In light evidence, this Patterson’s failure to assess respondent’s strengths, including needs and appropriateness *36 household, safety of his as she did Kops, deprived objective the court of information on a issue disputed crucial to the outcome.55No one knew whether respon- helpfully by only As is stated the current version of the CFF: “It is timely provided agencies when and intensive are families that services to ability parents’ protect and courts can make informed decisions about to 722-6, p and care for their children.” CFF 11. MICH73
Opinion by Corrigan, likely persist in criminal behavior because dent was Moreover, lifestyle. him and his it no one had evaluated does not significant statutory that the scheme relieve make reasonable efforts responsibility the state of its because, parent merely reunification with a as toward here, criminal history activity has a or parent adults. Reasonable efforts are unneces- violence toward violence or criminal sary parent’s past as a result of the only if the or created an unrea- parent behavior caused abuse, abuse, physical sonable risk of serious sexual or child, parent felony death of a if the was convicted of resulting injury in the of one of his own chil- assault murder, dren, attempted or committed murder, voluntary manslaughter of one of his own 722.638(1) (2). 712A.19a(2); MCL children. Thus, again statutory the trial court thwarted danger scheme was a presuming history history A. on the basis of his criminal when that any did not include of the enumerated offenses.
E. DECISION sum, In mini- deprived respondent the state of even mal due procedural process failing adequately notify him of his proceedings affecting parental rights terminating and then his on the basis of his lack remedy the fail- participation attempting without ure of notice. The state was aware of father, address, correct his status A.’s his release jail, obtaining from and his interest in of A. The custody state failed to make reasonable efforts to him of apprise ongoing proceedings becoming after aware that its at notice had attempts most of and contact failed. Although had bare notice of the A. and that the DHS reunifica- involving pursuing *37 In re Opinion Corrigan, did Kops, tion with he not receive sufficient information meaningfully participate to decline to —or participate pretermination proceedings. The —in failures of notice deprived respondent right of his due procedural process when the state then terminated his in a parental rights part as result of circumstances and missing directly information attributable to re- spondent’s meaningful prior participation. lack Un- circumstances, respondent’s subsequent der these no- proceedings tice of termination was not sufficient or calculated, circumstances, “reasonably under all to . . . afford an opportunity present [him] [his] Mullane, objections,” (emphasis added), 339 US at any meaningful way, given that the court refused to delay rectify termination in order to the earlier deficien- therefore, cies in notice. was denied due Respondent, process because the lacked “fundamental fairness,” required parental rights may which is before Brock, terminated. In re 442 Mich be at Accord- 111. ingly, the Court of reversed and di- Appeals properly rected the trial oppor- court afford a fair tunity participate.
F. ADDITIONAL CONCERNS
Finally, we note that we do not
the courts or
prohibit
initially focusing
DHS from
reunification efforts on
parent,
statutory
the custodial
consistent with the
“preferably
mandates that a child be
his or her
placed
own home . . . .”56 But when unsuccessful efforts at
parent
reunification with the custodial
cause the state
there is no excuse
permanency plan,
to reconsider
adequately notify
for its failure to
the noncustodial
right
of his
to involvement. Because failure to
parent
participate
plan
explicit
in the service
is an
factor that
712A.1(3)
(emphasis
added).
may justify to be assessed as opportunity of his right to notice pur child before the state for his placement potential have been might grounds termination on sues end, this we note assessment. To through remedied placement to a child’s statutory given preferences *38 to the child’s home,”58 proximity or in “close his “own in some cases home,”59may apply be difficult to parents’ parents that both appears presume text because the parent’s home.60 A noncustodial reside in the same “par references to a recognized by to be rights appear that a child requirements and ent” or “parents” setting available”61 family-like in “the most be placed if “family” poss his reunified with permanently 57 substantially parent the failure of the The court “shall view plan... comply the case service the terms and conditions of with parent would cause return of the child to his or her evidence that 712A.19a(5). Further, consistently harm ....” MCL substantial risk of 712A.19a(6)(c) 675(5)(E)(iii), provides that even MCL now with 42 USC hearing permanency planning that a child if the court determines at a parent and the child has been in foster care not be returned to his should months, required preceding to order the 22 the court is not for 15 of the provided agency if the state “has not to initiate termination plan, family, period consistent with the time in the case service the child’s necessary for the child’s safe return the services the state considers ....” to his or her home 58 712A.K3). MCL 59 675(5)(A) 712A.18f(3) added); (emphasis see also 42 USC MCL added). home”) (“close parents’ (emphasis proximity to the 60 712A.K3) notably, preference a child remain Most MCL states that possible, guidelines place “own home” when but then offers his his or her child has been “removed from the control of ment when the added.) 675(1)(B) similarly displays (Emphasis an parents 42 USC . . ..” by requiring assumption parents state offer share a home that the improve parents’ [and] the conditions in the home services “in order to (Emphasis return of the child to his own safe home....” facilitate 675(5)(C)(ii) added.) refers to “removal of the child from 42 USC likewise added.) parents (Emphasis his ....” the home of 675(5)(A). 712A.13a(10); 712A.18f(3); 42 USC MCL In re Opinion by Corrigan, ible.62 Yet references to a child’s home” appear “own favor the custodial home. There is no parent’s reason conclude that a has a diminished constitutional right merely to his child because he does not have custody of that child. physical contrary, To the San sky, 455 US at specifies parents,” “natural just custodial have parents, liberty a fundamental care, interest “in the of their custody management child” and that this interest persists although they are not “model parents” they even “have lost tempo their child rary custody (Emphasis to the State.” added.) Therefore, our reading of the statutes must account for a noncustodial parent’s rights. “Statutes presumed constitutional, are to be and courts have a duty to construe a statute as constitutional unless its unconstitutionality clearly v apparent.” Taylor Gate (2003). 1, 6; Pharmaceuticals, 468 Mich NW2d Accordingly, statutory references to or placement parent,” “family” reunification with “a “parents,” must be read to include noncustodial when parents appropriate. Perhaps significantly, most the mandate *39 “ efforts to child and reunify [reasonable the cases,” 712A.19a(2), family must be made all MCL is child reunify fulfilled merely through efforts to the and the custodial Reunification efforts be parent. may initially parent appropri directed at a custodial when ate, statutory preferences consistent with the for a unfruitful, child’s “own home.” But if these efforts are reunify the state must also make reasonable to efforts the child parent.63 Accordingly, with noncustodial 712A.19a(2). precisely approach. We note that the current CFF facilitates this It requires parent “requires engage efforts to an absent and locate parents/guardians” developing plan. “all ment” of the service CFF 722-6, original). pp (emphasis 1-2 A caseworker must meet with every parent” pursue parenting parent “each and must time “for with Mich 73 Opinion CORRIGAN,J. statutorily disquali- parent
unless the noncustodial custodian, the state must his child’s becoming fied from be evalu- right of his to notify parent the noncustodial statutory right of his a and potential placement ated as appropriate. if to receive services
CONCLUSION due conclusion, procedural is entitled to parent In a parental terminate his if the state seeks to process notify to make reasonable efforts rights. The state must meaningful allow him a him the and of a par- whether to We evaluate opportunity participate. minimal due on a process was afforded ticular rules, Statutory court case-by-case requirements, basis. point an of important agency policies provide Here, fulfill failed to inquiry. for this state departure funda- mandates, parent’s facilitate a statutory which child, child place to his a with right mental of access comply The state also failed to possible. his parent require- as well as statutory requirements, notice assess, locate, attempt the state ments Because parent. respon- engage nonparticipating indi- directly terminated dent’s were then lack of participation, of his uninformed rectly because process. Although minimal due deprived he was it parental rights, seek to terminate his may again state meaningful he has been afforded a may not do so until opportunity participate.
Affirmed. child, prior custody.” Id. legal right regardless at 5-7. A strengths family of needs and must be assessment/reassessment child(ren),” legal right household with a conducted for “each indicated,” “may 722-8a, 1, and, p reunification efforts “where OFF 722-7, p parent’s 2. home.” CFF shift to the non-custodial *40 In re Opinion by Cavanagh, J. KELLY, J., MARKHAM,J., CORRIGAN, C. and concurred with J.
CAVANAGH, I in (concurring part). concur trial by opinion. result reached the lead court’s respondent’s decision to terminate parental should be because the Human Department reversed (DHS) trial make Services and the court failed to reasonable efforts to reunite with his child and, failure, in light clearly of this the trial court erred had that by determining that the DHS shown statutory grounds for termination were established. however, I Contrary opinion, to the lead do not think necessary that it is for this Court to determine whether respon- the state’s actions this case also violated process rights. dent’s due opinion’s holding
I concur with the lead that the DHS statutory its The state has comply failed to with duties. 712A.19a(2), duty, a under MCL to make reasonable family.1 efforts to reunite a child and Reasonable efforts court, minimum, that the DHS and the trial at a require provided make the active efforts towards reunification rules, for in statutes and court such as those outlined 111(A)(1) (B)(1) opinion.21 agree of the lead parts exceptions, applies provides The statute some but none here. summary agree opinion’s applicable law I with the lead of the state requirement requirements, including a that the court must “advise appearance respondent parent he at the first court has stage right right attorney a to an at each and a financially attorney court-appointed attorney employ if he is unable to an on his behalf.” Ante at 94. own addition, opinion, Michigan comply In as observed the lead must Act, Security seq., IV-E 42 USC 670 et because it
with Title
of the Social
funding through
agree
I
receives federal
Title IV-E.
lead
procedure
opinion’s
for termination cases is man-
statement
law,
including the “reasonable efforts”
dated
both federal and state
1356.21(a)
(b).
result,
requirement.
See 45 CFR
As
courts should
*41
with sorely regulations laws and with the relevant for the reasons regard respondent” with lacking V(A).3 Further, agree 107. I in Ante at explained part mitigate did excuse or culpability respondent’s that duties, statutory comply failure to with its the state’s V(C). that, I when the in would also hold part discussed of provide notice required state is with comply a reasonable effort to do so should parents, in such as those set out process requirements, due 503; Treasurer, 481 Mich 751 NW2d Wayne Sidun v Co (2008). case, In the failure of the trial court and 453 this and make statutory to fulfill their duties the DHS and his child reasonable efforts to reunite of reversal of the trial court’s termination warrants rights. respondent’s parental clearly erred I also concur that the trial court rights under MCL terminating respondent’s parental 712A.19b(3)(g) (j), part explained in for the reasons V(D) failed to meet opinion. in of the lead state part termination was its burden to show that either basis for into consideration the earlier present, especially taking comply of the DHS and the trial court to failures statutory their duties. requirements conjunction, generally and a read the state and federal brought by
parent may procedural “claim error in an action the state to parental rights] comply [his if the fails to with the terminate state necessary, required procedures” It in federal law. Ante at 107. is not however, requirements whether the federal were met this to determine clearly actions so failed to meet the state case because state’s any requirements and “we have not discovered conflicts between the requirements applicable to case.” Ante at 104 n 47. state and federal this opinion, For the reasons stated in the lead I concur with its conclusion “statutory parent,’ placement ‘a references to or reunification with ‘family’ parents ‘parents,’ must be read to include noncustodial when appropriate.” Ante at 121. In re Opinion Weaver, reversing statutory clear bases for In of the two light parental of respondent’s trial court’s termination necessary for this Court I not think that it is rights, do process rights due whether to address be issues could agree process I that due were violated. fundamental of the uncontested implicated because “ care, custody, ‘in any liberty interest ” at San quoting his child. Ante management’ 1388; L 745, 753; S Ct Kramer, 455 US v tosky (1982). that, Michigan, agree I also Ed 2d 599 rules, and federal laws statutes, policy, the court DHS due adequate ensure procedures help forth all set *42 Nonetheless, for Ante at 93. parents. process protection this presented [in “the primary question I disagree respon actions satisfied is whether the state’s case] Ante at 92. This process.” due right procedural dent’s and the statutory grounds, resolved on may fully case be the same arise out of due violations alleged process Be statutory in violations. that resulted state actions by the clearly compelled is so holding this Court’s cause minimum, consis is, at a and court rules statutes I do not find it neces due process principles, tent with by it due required the extent to which sary to address principles. process I agree only with (concurring part). J. WEAVER, that the Court of specifically, opinion,
result of the lead
give
respon-
case to
correctly remanded the
Appeals
Rood,
In re
participate.”
opportunity
dent “a fair
Ap-
of the Court of
per curiam
opinion
unpublished
(Docket
280597), at 5.
No.
issued June
peals,
n
at 130
post
Justice
Further,
agree with
YOUNG,
I
substantively
resolved both
this case is
that because
law,
lead
Michigan
on the basis of
procedurally
restraint,
unnecessarily at-
no
expressing
opinion,
Title
concerning
federal questions
to resolve
tempts
670 et
Security Act,
seq.
42 USC
the Social
IV-E of
I.
ERROR
The failure of the trial court and the DHS to provide
adequate notice to respondent was the root of the trial
court’s
ruling
erroneous
that
had
petitioner
presented
1
opinion’s
Trejo,
I also concur with the lead
on In
reliance
re
462 Mich
341;
(2000),
proper
employed
services young including child.” MCL hearing, “[a]bandonment of a tional (2). 722.638(l)(a)(¿) abandons, “deserts,” child if he his A sought custody days of his child. has not than 91 is absent for more 712A.19b(3)(a)(¿¿). allege abandon petition in this case did not MCL ment. 722.3(2). 552.451b; MCL
128
II. POINTS OF DEPARTURE FROM THE LEAD OPINION One alternative rationale that I find insupportable is the lead opinion’s to create attempt rights substantive in a parent from federal statutes that do nothing more than impose duty on the state. Title IV-E of the Social Security Act, 42 USC 670 et seq., was enacted under Congress’s spending power7 provides federal fund- ing for states that adopt plan a foster care that complies with various requirements.8 If a state violates those requirements, it required will be to return a portion of its federal funding.9 As noted in the opinion, lead our Legislature has enacted several statutes mirroring federal act.10 lengthy analysis of the Title requirements IV-E
provided in the lead opinion would be useful back- ground information for intracourt training purposes an effort to our bring system into conformance with the federal law to having avoid to return federal dollars. However, the United Supreme States Court has not addressed question provisions which of Title IV-E Const, I, 8,§ US art cl 1. 670; 671; 1356.21; 42 USC 42 USC 46 CFR 45 CFR 1356.50. 1356.71(h) (j). 45 CFR 10 Ante at 103-104. In re Opinion Young, enforced might be substantive create might topic has been question and that aby parent,11 federal courts.12 Given among lower much debate convey substan- Title IV-E to using provenance *45 a not advance uncertain, this Court should is tive 11 347, 350; 1360; M, L Ed 2d 1 112 S Ct 118 v 503 US In Suter Artist 42 USC (1992), Supreme determined that United States Court 671(a)(15) hy affected private of action for children did not create a cause 1320a-2, enacting Congress 42 USC which reacted the state’s actions. provides: provision brought a of the Social to enforce In an action provision seg.], not to be Security such [42 Act USC 301 et its inclusion in a section unenforceable because of deemed required a plan specifying contents of requiring
Act
a State
expand the
to limit or
plan. This section is not intended
State
availability
private
determining
of
actions
grounds
any
by overturning
plan requirements other than
State
enforce
applied in
grounds applied
Artist M ... but not
in Suter v.
such
enforceability;
respecting
Supreme
such
prior
Court decisions
however,
not
to alter
provided,
this section is
intended
671(a)(lB)\
is not
holding
[42
M that
USC
in Suter v. Artist
right
[Emphasis added.]
private
action.
in a
of
enforceable
1320a-2,
Congress’s
§
the United States
enactment of
In the wake of
any provision
Title IV-E
of
Supreme
has not considered whether
Court
only
has
held that courts
private
of action. The Court
creates a
cause
by provision
Security
provision
Act
examine Title IV-D of the Social
must
gives
challenged provision
rise to an enforce-
determine whether the
329, 342;
Freestone,
117 S Ct
able,
right. Blessing v
520 US
individual
(1997).
1353;
novel when this can easily entirely case be resolved on narrow state grounds.13 law I Accordingly, disagree with IV of part the lead opinion.
I disagree also with the lead opinion’s extensive reliance on the current version of the DHS Childrens Foster Care Manual. This operating internal manual law, does not have the force of or even of an adminis- Moreover, trative rule. this judge Court should not conduct of the trial court and DHS workers on the basis of standards that were not until imposed after the events relevant to this case. I
Finally,
disagree
opinion’s
with the lead
consider-
ation of the potential constitutional
implications of the
trial court’s and the
statutory
DHS’s
and court rule
violations. This Court has repeatedly held that it should
not decide a case on constitutional
grounds
the issues
can be fully
adequately
statutory
resolved on
*46
grounds.14 The
statutory
numerous
and court rule vio-
(ND
2003) (42
277,
Ga,
622[b][10],
671[a][10],
FRD
290-294
USC
42 USC
[16],
[22],
and
private
675[1]
[5][D]and [E]
and 42 USC
and
create
causes of
action).
13
duty
Legislature
It is
providing procedural
to enact statutes
parent may challenge
consistent with Title IV-E. A
the trial court’s
comply
failure to
part
with state statutes that have been enacted as
of a Title
compliance plan. However,
“remedy”
IV-E
for the state’s failure to enact
given
government
statutes consistent with Title IV-Eis
to the federal
in the
“disallowing funding,”
parent.
form of
not to the
Contrary
opinion,
106-107,1
to the statement
in the lead
ante at
do
imply
authority
questions
that this Court lacks
to consider
of federal
yet
decisively
by
law that have
to be
resolved
the federal courts when this
necessary
properly
for the resolution of a case
before this Court.
However,
challenge
opinion’s unnecessary
I do
lengthy
lead
and
analysis
entirely
of Title IV-E when this case can be
resolved—both
substantively
procedurally
grounds.
state law
—on
14
1,
Bricklayers
Craftsmen,
See J & J Constr Co v
& Allied
Local
468
722, 734;
(2003), citing People
Mich
Riley,