Native American Law

This summary also appears under Termination of Parental Rights

 

Issues: Termination under §§ 19b(3)(c)(ii), (g), & (j); Claim that the trial court failed to provide respondent-father with a meaningful opportunity to participate in the child protective proceedings; In re Mason; In re DMK; In re Sours; "Plain error" review; In re Utrera; Ineffective assistance of counsel; In re CR; People v. Sabin (On Second Remand); People v. Johnson; The Indian Child Welfare Act (ICWA)(25 USC § 1901 et seq.); The Michigan Indian Family Preservation Act (MIFPA)(MCL 712B.1 et seq.); In re Sanders; In re Morris; Domestic violence (DV)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Lavictor-Hyde

e-Journal Number: 58625

Judge(s): Per Curiam – Borrello, Servitto, and Shapiro

 

The court affirmed in part the order terminating the respondent-father's parental rights, but remanded the matter to the trial court to consider whether to conduct a Ginther hearing or to resolve the issues as to possible ineffective assistance of counsel by making a determination as to whether trial counsel was ineffective such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. The respondent argued that the trial court failed to provide him with a meaningful opportunity to participate in the child protective proceedings. He contended that the trial court erroneously terminated his parental rights simply because he was incarcerated. This argument misconstrued the acts of DV between 2009 and 2012, thus showing that he habitually engaged in such conduct. Repeated acts of DV "by a parent against a romantic partner may show that the child could suffer injury if returned to the parent's household." The underlying reason for termination of parental rights was habitual DV, and respondent's incarceration was incidental to that conduct. Further, the case was factually distinguishable from Mason. The issue in Mason was the lack of available services throughout the proceedings. In this case, in contrast, services were available to respondent from the onset of the proceedings until his 4/13 incarceration for the 9/12 act of DV. These services included behavioral health for his anger management. "Simply put, any lack of available services" while he was in jail was attributable to his own conduct, while the lack of available services in Mason was attributable to the inaction of DHS. Thus, respondent was not entitled to relief on this issue. However, the court noted that if the trial court decides to conduct a Ginther hearing on remand, it should inquire into, among other things, why trial counsel failed to bring to its attention the heightened protections afforded under the ICWA and MIFPA. The court retained jurisdiction.

 

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