Issues: Termination under § 19b(3)(g); In re HRC; In re VanDalen; "Proper care and custody"; In re Mason; Procedural due process; Failure to allow the respondent-father to participate in the termination hearing by telephone; MCR 2.004; In re Williams; MCR 3.973(D)(2); Mathews v. Eldridge; Santosky v. Kramer; United States v. Cronic
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re McCullough
e-Journal Number: 58193
Judge(s): Per Curiam – Stephens, Saad, and Boonstra
The trial court's decision to terminate the respondent-father's parental rights based solely on his incarceration, without considering "his ability to provide proper care and custody through relatives was clear error." The trial court also violated the respondent's procedural due process rights by denying him the right to participate by telephone in the termination hearing. The trial court terminated respondent's parental rights to his two children under § 19b(3)(g) (failure to provide proper care and custody). The respondent was incarcerated in a Kentucky jail at the time of the hearing, and the trial court denied him the opportunity to participate via telephone, ruling that he was not entitled to this right because he was not incarcerated in Michigan. The court agreed with the respondent that the trial court erred by finding that his incarceration deprived his children of proper care and custody. Termination under § 19b(3)(g), without considering whether the respondent "could care for his children in the future, either personally or through his relatives[,]" was clear error. The respondent was also denied procedural due process. Although the court agreed with the trial court that MCR 2.004 was "inapplicable to respondent-father because he was incarcerated outside the Michigan Department of Corrections," he was still entitled to "meaningful participation in the termination hearing." The court applied the factors in Eldridge, and concluded that "the failure to allow respondent to participate in the termination hearing by telephone, and thereby to provide counsel the essential resource for a defense, access and collaboration with his client, is a 'circumstance of [such] magnitude' as to allow us to presume prejudice." Reversed and remanded.
Issues: Termination under §§ 19b(3)(l) & (m); In re Trejo Minors; Failure to introduce certified records related to out-of-state termination proceedings or testimony of a representative of the other state's CPS; Due process; Children's best interests; Effect of a bond with the respondent; In re LE
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re Pritchard/Bell/McKenzie
e-Journal Number: 58195
Judge(s): Per Curiam – Shapiro, Whitbeck, and Stephens
Holding that the trial court did not clearly err in finding that § 19b(3)(l) was established, that the respondent-mother's constitutional claims lacked merit, and that terminating her parental rights was in the children's best interests, the court affirmed the trial court's order terminating her parental rights. The record evidence, "including respondent's own testimony, indicated that her parental rights to a child were terminated in Indiana in 2009 after that child tested positive for cocaine at birth. Respondent testified that she attended the termination proceedings and that her rights were terminated because she failed to establish a home for the child and was not employed." While it was unnecessary to address the other ground for termination since only one ground had to be established, the court added that the trial court also did not clearly err in finding that § 19b(3)(m) was established. Respondent argued that "the failure to introduce certified records related to the Indiana termination proceedings or testimony of a representative of Indiana CPS" violated her due process rights. "However, a certified record of respondent's voluntary relinquishment of her rights with Indiana CPS as petitioner was admitted. That certified document established that proceedings were initiated and that respondent's parental rights were terminated." Respondent failed to "adequately brief this issue by not analyzing how her liberty interest would balance with the private interest and governmental interests involved. Most compelling here is respondent's unrebutted testimony to the existence of the prior terminations; this coupled with petitioner's witnesses' testimony and exhibits admitted warrant the trial court's findings that the statutory grounds were met." As to the children's best interests, "despite years of documented substance abuse problems, respondent remained in denial concerning her substance abuse issues." She failed to "acknowledge that she had a substance abuse problem and refused substance abuse services." She "continued to abuse substances and was incarcerated on probation violations related to substance abuse three times during the pendency of this case." While the two oldest children shared a strong bond with respondent, "the bond between parent and child may be outweighed by the child's need for stability and permanency."
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