Termination of Parental Rights
Although anyone who has information that a child needs the court’s protection has standing to initiate a proceeding, a child protection case typically begins when Children’s Protective Services (CPS) files a petition with the court.
On receiving a report of suspected child maltreatment, CPS must conduct an investigation and, depending on the findings of that investigation, take one of several possible actions. These actions range from simply closing the case without any further involvement to petitioning the family court for jurisdiction over the child.
If a petition is filed, the court must determine whether there is sufficient evidence to bring the child within the court’s jurisdiction. The primary provisions of that section address child abuse, child neglect, emotional maltreatment, educational neglect, unfit home environment, criminality, and dependency, which includes circumstances in which a child is homeless or not domiciled with a legally responsible adult, has repeatedly run away from home, has been involved in commercial sexual activity (i.e., prostitution), or committed a delinquent act at the behest of a parent or other adult, or the legally responsible adult has died or is permanently incapacitated.
If the court determines that there is insufficient evidence to invoke the court’s jurisdiction, the court must dismiss the petition. If the court finds there is a preponderance of the evidence by legally admissible evidence regarding each respondent parent that one of the jurisdictional bases is established, the court may take temporary custody of the child. When proceeding under the Juvenile Code, the family court “may issue orders affecting a party as necessary.” In a child protective proceeding, the parties include the petitioner; the DHHS; the child; the parent, guardian, or legal custodian; and any licensed child care agency acting as an agent of the DHHS.
In a limited number of factual circumstances, a petition may seek the termination of parental rights at the initial dispositional hearing. The court may not terminate a parent’s rights unless the petition requests termination. Although the majority of petitions filed seek only temporary custody of the child, the CPL requires that, in certain circumstances, the DHHS must seek termination of parental rights at the initial dispositional hearing. These cases involve the most egregious forms of abuse, neglect, or aggravated circumstances (e.g., torture, criminal sexual conduct involving penetration, or severe physical abuse) or situations in which a court has previously terminated the parent’s rights for another child and the subsequent child is at risk of maltreatment at the hands of the parent.
In the absence of aggravated circumstances as defined the court will generally assert only temporary jurisdiction over the child. When it does so, the court must establish a treatment plan intended to assist the parents in regaining custody of the child and reunification of the family. The court must conduct review hearings every 90 days to determine whether progress with the treatment plan is being made by the parent and the parent is benefiting from the services, whether reasonable efforts for reunification have been made by the department, whether it is contrary to the welfare of the minor to be in his or her home, and whether continued wardship of the child is warranted.
If the child remains in foster care, the court must conduct a permanency planning hearing (PPH) one year after the original petition was filed and once a year after that for as long as the child is a temporary ward of the court. At the PPH, the court must determine whether the agencies involved have made reasonable efforts to finalize the permanency plan. The court has five basic options at this stage: (1) return the child to parental custody, (2) direct that a petition to terminate parental rights be filed, (3) place the child in a juvenile guardianship that is intended to be permanent, (4) place the child permanently with a relative who is willing to care for the child (with a continuing wardship), or (5) order some other unspecified permanent resolution to the child’s situation (when options 1 through 4 are unavailing for the child).
When a child cannot be reunified with his or her parent safely, the court must consider alternative permanent options such as a juvenile guardianship, termination of parental rights, or another planned permanent living arrangement. If the court does not implement another permanency plan, it has authority to terminate parental rights at a supplemental dispositional hearing if one of the statutory grounds for termination is established by clear and convincing evidence.
If a basis for termination is established u, the court must then determine whether entry of an order terminating parental rights would serve the child’s best interests. If the court finds by clear and convincing evidence statutory grounds to terminate parental rights and then by a preponderance of the evidence that it would be in the child’s best interests to terminate parental rights, the court will enter an order terminating the parent’s rights. Id. The determination regarding the child’s best interests may be made based on the whole record of the case but should consider a number of specific factors. I
The court must also consider the best interests of each individual child when determining the best interests. The court may weigh the advantages of a foster home over the parental home. Placement with a relative weighs against termination of parental rights and must be considered in a best interests determination.
If the court terminates parental rights, it must conduct regular post-termination review hearings for as long as the child remains a permanent ward of the court or a ward of the Michigan Children’s Institute (MCI), the state’s adoption agency. The purpose of such a hearing is for the court to monitor progress toward the timely achievement of an appropriate permanency plan for the child, and the court must make findings regarding whether reasonable efforts to that end have been made by the Michigan DHHS and its contract agencies.
A dispositional order placing the child under the court’s temporary jurisdiction, an order terminating parental rights, and any final order may be appealed to the Michigan Court of Appeals as of right. An order issued after a preliminary hearing that removes a child from his or her home is not appealable by right. Only orders of disposition are appealable by right. Id. All other appeals are by leave. This includes an order removing a child from the parental home after a preliminary hearing. Issues concerned with the assertion of temporary jurisdiction must be appealed directly and may not be raised after a supplemental petition seeking termination of parental rights has been granted because the court has determined this to be a collateral attack.
However, a parent does not violate the rule against collateral attacks on the assertion of jurisdiction when raising a violation of Department of Human. This is because a Sanders attack is a procedural due process attack on the court’s exercise of dispositional authority and not on its exercise of jurisdiction. Before, pursuant to the one-parent doctrine, a trial court was not required to adjudicate more than one parent. Rather, a trial court could establish jurisdiction over a minor child with the adjudication of only one parent and have the authority to subject the other unadjudicated parent to its dispositional authority. In other words, a court must make adjudicative findings of an individual parent’s unfitness before making orders and interfering with the constitutionally protected parent-child relationship. Sanders is to be given full retroactive application to all cases on appeal at the time that decision was announced.
If the department is requesting to place a child out of his or her home environment, all parents to that child should have allegations of unfitness that are adjudicated. Absent this, the parent without allegations is lawfully permitted to care for and have custody of his or her child or to make proper care and custody plans for that child.
Adoption proceedings regarding the child may not be finalized while an appeal of the decision to terminate parental rights is pending.