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MSC: Trial Court Must Consider Guardianship For Children Under Age 10

Posted on Wednesday, January 29, 2020

A trial court must examine whether terminating a mother’s parental rights was in the best interests of each child – including whether a guardianship with the maternal grandmother is appropriate for two of the children, the Michigan Supreme Court has ruled.

In the case of In re Affleck/Kutzleb/Simpson, Minors, the Michigan Court of Appeals (Docket No. 347045) affirmed the trial court’s ruling that termination of the respondent-mother’s parental rights was proper pursuant to MCL 712A.19b(3)(c)(i), (g) and (j). The Court of Appeals also found it was in the children’s best interests to terminate the respondent’s parental rights and the trial court did not improperly rely on a recommendation against a guardianship that had been submitted by the respondent’s psychologist.

The respondent appealed the decision to the Michigan Supreme Court (Docket No. 160235).

In an order, the Supreme Court vacated a portion of the ruling. The Court remanded the case and instructed the trial court to reconsider whether terminating the respondent’s parental rights was in the best interests of each child and whether a guardianship should be established.

Trial Court Ruling

The Department of Health and Human Services (DHHS) filed a petition in April 2017 to remove the children from the respondent’s care due to alleged neglect, as well as drug and alcohol use around the children. At an October 2018 hearing, the trial court ruled that respondent’s parental rights should be terminated.

Looking at the statutory grounds for termination, the trial court said clear and convincing evidence existed under MCL 712A.19b(3)(c)(i) to show that “more than 182 days … passed since issuance of the dispositional order and Respondent-Mother has failed to rectify the conditions that brought her children into care and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the children’s ages.” The trial court also found the same evidence supported termination of the respondent’s parental rights under MCL 712A.19b(3)(g) and (j).

Regarding the best interests of the children, the trial court pointed out that two of the children, KPA and BEK, were with their maternal grandmother and the third child, BPA, was in non-relative foster care. According to the trial court, the maternal grandmother had an appropriate home, had bonded with KPA and BEK, and was willing to adopt them. The trial court held that the “children’s needs for stability, permanency, and finality … are not outweighed by the bond or relative placement.”

As for BPA, the trial court noted that the foster mother was willing to adopt the child, that BPA had demonstrated behavior problems in response to the respondent’s parenting-time visits, and that maintaining BPA’s current placement was in her best interests.

Based on the foregoing, the trial court issued an order terminating the respondent’s parental rights. The respondent appealed.

Termination Upheld

The Court of Appeals affirmed the trial court’s decision. In so ruling, it first examined the statutory grounds for termination.

“The trial court did not clearly err by finding that clear and convincing evidence supported termination of respondent’s parental rights under MCL 712A.19b(3)(c)(i),” the Court of Appeals wrote. “Respondent has a nearly two-decade long history of substance abuse, including periods of sobriety and relapse. … Further, respondent was unable to verify her claimed employment and still lacked housing at the time of the termination hearing. Given respondent’s long substance abuse history and high risk of relapse after only minimal sobriety, as well her lack of ability to support and supervise the children, the trial court did not clearly err by finding that there was no reasonable likelihood that respondent would resolve her continuing issues within a reasonable time.”

Further, the respondent was given “more than three times the statutory period to resolve the conditions that led to the children’s adjudication, and the trial court did not clearly err by concluding that respondent still was not reasonably likely to resolve her issues within a reasonable period of time,” the Court of Appeals stated.

In addition, the respondent “did not maintain her sobriety, cooperate with the terms of her probation or obtain housing,” the Court of Appeals explained. “Her caseworker was also unable to verify respondent’s claims of employment and completion of a parenting class. … Given the length of the proceedings and respondent’s failure to comply with her service plan, there was no reasonable expectation that she would be able to provide proper care and custody within a reasonable time considering the children’s ages. Clear and convincing evidence supported the termination of respondent’s parental rights under MCL 712A.19b(3)(g).”

The Court of Appeals also agreed the record established that the children were reasonably likely to be harmed if they were returned to her. “The trial court cited respondent’s long history of substance abuse, repeated relapses, lack of suitable housing and employment, and lack of a plan for the children. Numerous witnesses testified that respondent’s lack of stability was a risk of harm to the children. … Moreover, respondent made suicide threats during the proceedings, but failed to seek treatment for those feelings and, by the time of the termination hearings, she denied that she had actually been suicidal. Given these facts, we are not left with a definite and firm conviction that the trial court made a mistake when it found a statutory basis for termination under MCL 712A.19b(3)(j).”

Best Interests Determination

Regarding the trial court’s best interest determinations, the Court of Appeals said a preponderance of the evidence supported that termination of the respondent’s parental rights was in the children’s best interests.

“The record demonstrates that respondent loves her three children and shares a bond with them,” the Court of Appeals said. “Her severe substance abuse issues, however, had affected all of the children. … In supervised settings with the two older children, respondent was loving, attentive, and appropriate, but according to the foster care worker who supervised visitation with BAS, intervention was repeatedly required because respondent failed to appropriately monitor the toddler.”

The Court of Appeals pointed out that all three children were living in appropriate homes with people who were willing to adopt them. “In contrast to the children’s current stable homes, respondent had yet to find a home during the 19 months of the proceedings. Her mother expressed concerns that respondent could not financially support the children on her own. Given the children’s need for permanency, a safe home, and a parent who could put their needs first, the trial court did not clearly err by finding that termination of respondent’s parental rights was in the children’s best interests.”

On appeal, the respondent argued the trial court, when considering the best interests of the children, improperly refused to consider a guardianship. “The purpose of a guardianship is to avoid the termination of parental rights … and it allows a child to maintain a relationship with a parent when placement with the parent is not yet possible …,” the Court of Appeals explained. “A trial court is not required to establish a guardianship with a relative in lieu of terminating parental rights if it is not in the children’s best interests.”

In this case, while the maternal grandmother and the respondent indicated they would support a guardianship for KPA and BEK, the foster care worker explained that guardianship was not considered. According to the Court of Appeals, the DHHS foster care worker testified that the department does not recommend guardianships for children under 10 years old because it is not necessarily permanent (i.e., the guardian can terminate it).

“KPA was eight years old and BEK was five years old,” the Court of Appeals said. “Given respondent’s long history of substance abuse and relapses, she had not demonstrated a likelihood of long-term stability to warrant a guardianship. … Again, record evidence demonstrated the children’s significant need for stability. The trial court did not err when it relied on [the] recommendation [by the respondent’s psychologist] against a guardianship based on the children’s need for stability.”

MSC Order

In an order vacating part of the Court of Appeals ruling, the Michigan Supreme Court specifically noted that the DHHS did not consider recommending a guardianship for two of the children because of a purported “departmental policy” against guardianships for those under age 10.

“Absent contrary statutory language, such a generalized policy is inappropriate,” the Supreme Court said. “On remand, the trial court shall address whether guardianship is appropriate for [the two children] as part of its best-interest determinations without regard to a generalized policy disfavoring guardianship for children under the age of 10.”

To support its decision, the Supreme Court cited In re Timon, 501 Mich 867 (2017), where the high court instructed that, on remand, “the trial court shall make an individualized determination as to whether terminating respondent’s parental rights is in the best interests of respondent’s youngest child without regard to a generalized policy disfavoring guardianship for children under the age of 14.”

The Supreme Court also cited In re Olive/Metts Minors, 297 Mich App 35 (2012), and instructed that, as part of the best interest determinations, the trial court “shall consider” the relationships of the siblings when deciding the best interests of each child individually.

“In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court,” the Supreme Court concluded in its order.

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