MSC Denies Appeal In Termination Of Parental Rights Case
The Michigan Supreme Court will not hear the appeal in a termination of parental rights case where the Court of Appeals twice held that the trial court and referee erroneously found that termination of a father’s parental rights was not in the child’s best interests.
The case of In re J.V. Locricchio has been back and forth in the Michigan trial and appellate courts for several years. The Macomb County Circuit Court initially issued its decision in the case in October 2021, which was appealed.
The Court of Appeals released its first opinion in the case (Docket No. 359738) on November 3, 2022, finding the Macomb County Circuit Court wrongly held that termination of the respondent-father’s parental rights was not in the child’s best interests under MCL 722.23.
About a month later, the Court of Appeals granted a motion for reconsideration in the case. In a December 8, 2022 order, the appeals court instructed the case be re-briefed and submitted to a “new panel” for decision. In its order, the appeals court vacated the November 3, 2022 opinion and remanded the matter so appellate counsel could be appointed for the respondent-father.
Accordingly, the parties re-briefed the case. On September 14, 2023, a different Court of Appeals panel issued a second opinion in the case, again concluding the trial court and referee “clearly erred” by finding that termination of the respondent’s parental rights was not in the child’s best interests. The appeals court remanded the case “for further proceedings on whether termination of respondent’s parental rights is in the child’s best interests.”
That September 14, 2023 decision was appealed to the Michigan Supreme Court, which recently denied leave to appeal (Docket No. 166209). In its order denying leave, the high court simply said it was “not persuaded that the question presented should be reviewed by this Court.”
Background
The Department of Health and Human Services (DHHS) filed a petition in 2019 to remove the minor-child from her mother’s custody and terminate her parental rights. The petition indicated the respondent had been incarcerated for domestic violence against the mother and he was unable to care for the child, who was 9 years old at the time. The respondent’s visitation rights had been suspended and he admitted to relapsing on methamphetamine with the mother. Before the child was removed from the mother, the respondent had not provided a home or support for the child, and had been in and out of jail. The Macomb County trial court authorized the petition and ordered the child be placed into protective custody.
The respondent had met the mother while they were using heroin together, “which essentially became their lifestyle.” After the child was born, the respondent served additional jail terms for drug possession and use. The record showed intermittent periods when respondent abstained from drug use before relapsing. In October 2019, the respondent was offered reunification services. In November 2019, the respondent pleaded no contest to the allegations in the DHHS petition.
The respondent agreed to a parent-agency treatment plan (PATP). At a hearing in May 2020, and in subsequent hearings, it was reported that the respondent was not compliant with the PATP. His whereabouts were unknown at times and he failed to maintain contact or attend court hearings. Rather than working to obtain custody of the child, the respondent disappeared several times and did not complete any PATP services. In April 2021, the DHHS learned that the respondent was back in jail. When he got out of jail, rather than participating in services and working toward reunification by maintaining contact with the DHHS, finding employment, finding suitable housing and setting up visitation with the child, the respondent violated his parole requirements and “added new crimes to his record.”
The DHHS filed a supplemental petition on September 22, 2020 to terminate the respondent’s parental rights for failing to participate in services that were offered. The trial court authorized the petition. At this point, the child was 11 years old. The case worker testified at the hearing that the child consistently indicated that she was happy and wanted to live with her foster family, was doing well in school, had made friends and did not want to go live with either parent.
While incarcerated before the termination hearing, the respondent became drug-free and had been phoning the child twice a month. The case worker and the foster father both testified that the child enjoyed talking to the respondent, but she did not initiate the calls and did not want to talk with him at times (although she did not refuse to speak with him when he called). The foster father testified there had never been an “ongoing relationship” between the respondent and the child, but the child knew the respondent was her legal father. The case worker and foster father both believed that there was no bond between the respondent and the child, and testified that termination of the respondent’s parental rights would be in the child’s best interests.
After closing arguments, the referee found clear and convincing evidence to support termination under MCL 712A.19b(3)(c)(i) (the conditions that led to the adjudication continue to exist and no reasonable likelihood that they would be rectified within a reasonable time considering the child’s age); MCL 712A.19b(3)(c)(ii) (other conditions exist, the parent received recommendations to rectify those conditions, the conditions were not rectified and there is no reasonable likelihood that the conditions would be rectified within a reasonable time considering the child’s age); MCL 712A.19b(3)(g) (failure to provide proper care and custody); and MCL 712A.19b(3)(j) (reasonable likelihood of harm to the child if returned).
However, regarding the best interests of the child, the referee found the preponderance of the evidence established there was indeed a relationship between the respondent and the child and that they “both benefit from that.” The referee determined the evidence showed the child looked forward to her conversations with the respondent and the respondent “definitely” looked forward to maintaining a relationship with the child. The referee found 1) there was “no testimony whatsoever” that maintaining the relationship between the respondent and the child would “at all be detrimental to her” and 2) the testimony showed that maintaining the relationship with the respondent would be a benefit to the child. The referee then concluded that termination of the respondent’s parental rights would not be in the best interests of the child.
The DHHS asked for a review of the referee’s recommendation, asserting that the referee clearly erred. However, the trial court disagreed with the DHHS and signed the referee’s recommendation that termination of the respondent’s parental rights was not in the child’s best interests. As a result, the trial court denied the DHHS’s supplemental petition to terminate the respondent’s parental rights.
The DHHS appealed.
COA Decision #1
In its November 3, 2022 unpublished opinion, the Court of Appeals noted that when making a best-interests determination, the trial court “should weigh all the evidence available within the whole record.” However, the referee in this case “did not weigh the evidence available on the whole record” when determining the child’s best interests, the appeals court said. Rather, the referee appeared to only consider the parent-child bond and based her decision on the fact that the “child was willing to talk to respondent by phone a couple times a month.”
Moreover, neither the referee nor the trial court considered “other best-interest factors,” the Court of Appeals observed. “The fact that [the respondent] had two uneventful visits with the minor child at the beginning of this case does not outweigh the fact that he did not show up for a planned third visit or make other attempts to see” the child, the appeals court explained. The appeals court also pointed out the respondent did not complete parenting classes, disappeared from the child’s life for months at a time and had never provided a home or any parenting to the child in the past.
In addition, the Court of Appeals said the referee did not consider the foster home’s advantages “over whatever unknown home respondent might possibly provide” the child. The referee also did not consider that 1) the child “loved” her foster home, 2) the foster family wanted to adopt her and 3) the child needed permanency and stability. The child was not heard “when she clearly indicated that she did not want to live with” the respondent, the appeals court emphasized. Moreover, the referee failed to consider the respondent’s history of domestic violence and his failure to address his substance-abuse and anger issues.
Accordingly, the Court of Appeals held the trial court clearly erred in its decision and remanded the case for entry of an order terminating the respondent’s parental rights.
On December 8, 2022, the Court of Appeals granted a motion for reconsideration and vacated the November 3, 2022 opinion, saying the case was being remanded for the “appointment of appellate counsel for the respondent-appellee ….”
COA Decision #2
In its September 14, 2023 unpublished opinion, the Court of Appeals concluded the trial court and referee “clearly erred by finding that termination was not in the child’s best interests.”
The DHHS argued that the trial court mistakenly found that termination of the respondent’s parental rights was not in the child’s best interests. “We agree,” the Court of Appeals said, pointing out that MCL 712A.19b(5) says, “If the court finds that there are grounds for termination of parental rights and that termination of parental rights is in the child’s best interests, the court shall order termination of parental rights and order that additional efforts for reunification of the child with the parent not be made.”
The referee “took judicial notice of the file from all prior proceedings, as well as the testimony that was credibly received this date,” the Court of Appeals observed. “But our review of the record shows that the referee did not weigh the evidence available on the whole record in determining the child’s best interests and failed to consider that the child’s interest in a normal family home was superior to any interest respondent had. Instead, the referee seemed to base her decision on the child engaging in a couple of telephone calls a month with respondent. The referee made no mention of other factors and did not reference other testimony or documents in the record. The referee did not consider respondent’s parenting ability, including respondent’s failure to complete parenting classes and his absences from her life, including his disappearances and incarcerations. The referee did not consider the advantages of the foster home over what respondent could provide. More specifically, the referee did not consider that the then 11-year-old child had been in a foster home for more than two years, that she loved it there, and that the foster father wanted to adopt her.”
According to the Court of Appeals, the referee “not only failed to address the child’s need for permanency or stability, but also her stated preference not to live with respondent.” In addition, the referee failed to consider 1) the respondent’s history of domestic violence, 2) the respondent’s failure to successfully address his anger issues and his substance-abuse issues and 3) that the only time the respondent remained drug-free for any significant amount of time was when he was incarcerated.
“Moreover, there is no indication that the referee considered the fact that respondent had continued to engage in criminal behavior, including a weapons charge and a conviction of aggravated indecent exposure,” the Court of Appeals said. “Along with respondent’s long-term substance abuse and domestic violence, a conviction of aggravated indecent exposure would be relevant to deciding what was in the child’s best interests. The referee took no notice of the child’s history of abuse while in her mother’s care.”
Therefore, “we disagree that there was ‘no testimony whatsoever’ that maintaining a relationship with respondent would be detrimental to the child, but would be ‘a benefit to her,’” the Court of Appeals said. “And we conclude that the referee and trial court clearly erred because we are left with a definite and firm conviction that a mistake has been made regarding the best-interests determination. We vacate the trial court’s order in part and remand for further proceedings on the child’s best interests.”
Cavanagh Concurs With Appeal Denial
The Court of Appeals September 14, 2023 decision was appealed to the Michigan Supreme Court. In its order denying leave to appeal, Justice Megan K. Cavanagh explained why she concurred with the high court’s decision not to hear the case.
Cavanagh specifically referenced the fact that, in its decision, the Court of Appeals “did not order termination of respondent-father’s parental rights.” Rather, the Court of Appeals “ruled that the referee’s decision was incomplete because the referee did not consider all of the relevant information and remanded for additional findings on [the child’s] best interests.”
The Court of Appeals decision “does not dictate a particular result, and, on remand, respondent-father remains free to argue, as articulated in his and amici curiae’s appellate briefing, that a guardianship is in the child’s best interest,” Cavanagh said.
