Articles Posted in Family Law

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In 2012, the Department of Health and Human Services (DHHS) initiated a child protective proceeding in requesting that the court take jurisdiction of two-year-old JJW and newborn ELW after ELW tested positive for controlled substances at birth. The minor children were removed from the biological parents’ care and placed with foster parents. Both children were eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians. In 2015, the biological parents released their rights to the children; a referee accepted the parents’ releases and entered standard orders terminating the biological parents’ rights. The children’s foster parents petitioned to adopt the children, the Sault Tribe objected, and the court denied the foster parents’ petition. The court committed the children to the Michigan Children’s Institute (MCI) for further case planning. Respondent-father Jack Williams then filed a notice to withdraw his prior consent to the termination of his parental rights and demanded the return of the children under MCL 712B.13(3) of the Michigan Indian Family Preservation Act (MIFPA). The court denied Williams’s withdrawal request, reasoning that MCL 712B.13(3) did not apply because Williams had not voluntarily consented to placement for purposes of adoption under MCL 712B.13(3) but instead had released his parental rights to the minor children to DHHS under MCL 710.28. The foster parents appealed the circuit court order denying their adoption petition, and Williams appealed the order denying his motion to withdraw his consent to the termination of his parental rights and for return of the children. The Court of Appeals consolidated the cases, and in a per curiam opinion, vacated the circuit court’s order denying the adoption and remanded for further proceedings. The Court of Appeals affirmed the circuit court’s denial of Williams’s motion to withdraw his consent to the termination of his parental rights and to have his children returned to his custody. Williams believed the plain language of MCL 712B.13(3) entitled him to withdraw his consent because the trial court had not yet entered a final order of adoption for his children. The Michigan Supreme Court agreed, and reversed and remanded this matter for further proceedings. View "In re Williams" on Justia Law

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In 2012, the Department of Health and Human Services (DHHS) initiated a child protective proceeding in requesting that the court take jurisdiction of two-year-old JJW and newborn ELW after ELW tested positive for controlled substances at birth. The minor children were removed from the biological parents’ care and placed with foster parents. Both children were eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians. In 2015, the biological parents released their rights to the children; a referee accepted the parents’ releases and entered standard orders terminating the biological parents’ rights. The children’s foster parents petitioned to adopt the children, the Sault Tribe objected, and the court denied the foster parents’ petition. The court committed the children to the Michigan Children’s Institute (MCI) for further case planning. Respondent-father Jack Williams then filed a notice to withdraw his prior consent to the termination of his parental rights and demanded the return of the children under MCL 712B.13(3) of the Michigan Indian Family Preservation Act (MIFPA). The court denied Williams’s withdrawal request, reasoning that MCL 712B.13(3) did not apply because Williams had not voluntarily consented to placement for purposes of adoption under MCL 712B.13(3) but instead had released his parental rights to the minor children to DHHS under MCL 710.28. The foster parents appealed the circuit court order denying their adoption petition, and Williams appealed the order denying his motion to withdraw his consent to the termination of his parental rights and for return of the children. The Court of Appeals consolidated the cases, and in a per curiam opinion, vacated the circuit court’s order denying the adoption and remanded for further proceedings. The Court of Appeals affirmed the circuit court’s denial of Williams’s motion to withdraw his consent to the termination of his parental rights and to have his children returned to his custody. Williams believed the plain language of MCL 712B.13(3) entitled him to withdraw his consent because the trial court had not yet entered a final order of adoption for his children. The Michigan Supreme Court agreed, and reversed and remanded this matter for further proceedings. View "In re Williams" on Justia Law

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A trial court granted Zaid Safdar a divorce from Donya Aziz. The judgment provided the parties would hare joint legal custody of their minor child and that defendant would have sole physical custody of the child. The wife appealed the court’s denial of her motion for attorney fees in relation to the judgment. While that appeal was pending with the Court of Appeals, the wife moved the trial court for a change of domicile. The trial court denied the motion, reasoning that under MCR 7.208(A), it lacked the authority to modify the custody order while defendant’s appeal of the attorney-fee award was pending in the Court of Appeals. The court rejected the wife's reliance on Lemmen v Lemmen, 481 Mich 164 (2008), which held that under MCL 552.17(1) and MCR 7.208(A)(4), a trial court may modify an order or judgment concerning child support or spousal support after a claim of appeal is filed or leave to appeal is granted. The wife appealed the denial of her d for leave to appeal in the Court of Appeals, which granted the application. The Court of Appeals reversed in a per curiam opinion, holding that Lemmen also applied to judgments concerning the care and custody of children. The husband appealed. The Michigan Supreme Court held that MCL 722.27(1) authorized the continuing jurisdiction of a circuit court to modify or amend its previous judgments or orders and was an exception to MCR 7.208(A) “otherwise provided by law.” Accordingly, the Supreme Court vacated the Court of Appeals decision to the extent it derived jurisdiction from MCL 552.17, affirmed the result reached, and remanded to the trial court for further proceedings. View "Safdar v. Aziz" on Justia Law

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Under Michigan’s Probate Code, the Department of Health and Human Services has an affirmative duty to make reasonable efforts to reunify a family before seeking termination of parental rights. The Department also has an obligation to ensure that no qualified individual with a disability is excluded from participation in or denied the benefits of the services of the Department. Efforts at reunification cannot be reasonable under the Probate Code if the Department has failed to modify its standard procedures in ways that are reasonably necessary to accommodate a disability under the ADA. The Department petitioned to terminate the parental rights of respondent, a person with an intellectual disability. The Supreme Court determined after review of this matter that the circuit court erred by concluding the Department had made reasonable efforts at reunification because the court did not conduct a complete analysis of whether reasonable efforts were made: the court did not consider the fact that the Department had failed to provide the court-ordered support services, nor did the court consider whether, despite this failing, the Department’s efforts nonetheless complied with its statutory obligations to reasonably accommodate respondent’s disability. The Court of Appeals correctly determined that termination of respondent’s parental rights was improper without a finding of reasonable efforts. Remand was necessary for an analysis of whether the Department reasonably accommodated respondent’s disability as part of its reunification efforts in light of the fact that respondent never received the court-ordered services. View "In re Hicks/Brown" on Justia Law

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In 2009, defendant Sharea Foster, gave birth to a son, BF. Plaintiff Shae Graham alleged that he was the biological father of BF and therefore should be recognized as BF’s legal father. However, defendant has been married to her husband, Christopher Foster, since 2004. Because “a child conceived and born during a marriage is legally presumed the legitimate child of that marriage, and the mother’s husband is the child’s father as a matter of law,” Michigan law presumed that Christopher was BF’s father notwithstanding plaintiff’s assertions. Plaintiff, nonetheless, sought to establish his alleged paternity and legal fatherhood of BF. When a minor child has a presumptive father, the Revocation of Paternity Act (RPA) allows an individual to come forward under certain circumstances and allege his paternity and legal fatherhood. The Supreme Court determined that the Court of Appeals erred by prematurely adjudicating a nonparty’s anticipated defense (here, Christopher Foster). For that reason, the Supreme Court vacated the offending portions of the judgment below, while leaving in place its judgment remanding the case for further proceedings consistent with the remainder of its opinion. View "Graham v. Foster" on Justia Law

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Petitioner-mother and respondent were married in 2003 and had one child, AJR, during their marriage. They divorced in 2009. The divorce judgment gave the parties joint legal custody of the child, gave physical custody to the mother, placed support obligations on respondent, and gave respondent reasonable visitation. Mother married petitioner-stepfather in 2010, and they lived together with AJR as a family. In May 2012, petitioners filed a petition to terminate respondent’s parental rights so that the stepfather could adopt AJR under MCL 710.51(6). Petitioners alleged that respondent had failed to provide support or comply with a support order and had failed to visit or contact AJR for more than two years. The trial court granted the petition and terminated respondent’s parental rights. Respondent appealed, and the Court of Appeals reversed, concluding that respondent’s parental rights had been improperly terminated given that respondent and the mother had joint legal custody of AJR and MCL 710.51(6) only allowed a court to terminate the rights of a parent who does not have legal custody. The panel held that the statute required the petitioning parent be the parent having sole legal custody. The Supreme Court affirmed the Court of Appeals. "Petitioner-mother has always been free to seek modification of the custody arrangement under MCL 722.27. If on remand petitioner-mother secures sole legal custody of the child, then petitioners may proceed with stepparent adoption under MCL 710.51(6)." View "In re ARJ" on Justia Law

Posted in: Family Law

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The issue this case presented to the Supreme Court was the constitutionality of Michigan’s one-parent doctrine. The one-parent doctrine essentially imposes joint and several liability on both parents, potentially divesting either of custody, on the basis of the unfitness of one. "Merely describing the doctrine foreshadows its constitutional weakness." Upon petition by the Department of Human Services (DHS), the trial court adjudicated respondent-mother, Tammy Sanders, as unfit but dismissed the allegations of abuse and neglect against respondent-appellant-father, Lance Laird. Laird moved for his children to be placed with him. Although Laird was never adjudicated as unfit, the trial court denied Laird’s motion, limited his contact with his children, and ordered him to comply with a service plan. The trial court relied on the one-parent doctrine and the Court of Appeals’ decision in "In re CR," (646 NW2d 506 (2002)), from which that doctrine derives. Laird argued that the one-parent doctrine violated his fundamental right to direct the care, custody, and control of his children because it permits the court to enter dispositional orders affecting that right without first determining that he was an unfit parent. The Supreme Court agreed: because application of the one-parent doctrine impermissibly infringed the fundamental rights of unadjudicated parents without providing adequate process, the Court held that it was unconstitutional under the Due Process Clause of the Fourteenth Amendment. View "In re Sanders" on Justia Law

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In February 2008, the Department of Human Services (DHS) removed COH, ERH, JRG, and KBH from their mother’s care. The children were initially placed in two separate foster homes; however, in October 2008, all of the children were placed with Holy Cross Children’s Services. The issue this case presented to the Supreme Court concerned the interplay between MCL 722.954a and MCL 712A.19c, and whether the preference for placement with relatives created by MCL 722.954a was relevant to a court’s consideration of a petition to appoint a guardian under MCL 712A.19c(2). Because the Court concluded that the two statutes applied at different and distinct stages of child protective proceedings, the Court held that hold that there was no preference for placement with relatives as part of a guardianship determination under MCL 712A.19c(2). Accordingly, because the Court of Appeals in this case applied a preference in favor of creating a guardianship with a relative in support of its decision to reverse the trial court, the Supreme Court concluded that the Court of Appeals erred. View "In re COH, ERH, JRG, KBH" on Justia Law

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In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue. View "In re J.L. Gordon, Minor" on Justia Law

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In combined cases, the Supreme Court examined the Indian Child Welfare Act (ICWA) to decide whether several issues relating to the Act's notice provision mandate notice be sent to the appropriate tribe or to the Secretary of the Interior. Because the question of whether notice violations occurred in these cases began with determining whether the tribal-notice requirement was triggered, the Court first considered what indicia of Indian heritage sufficed to trigger the notice requirement. Further, the Court then considered whether a parent could waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. "While it is impossible to articulate a precise rule that will encompass every possible factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one." Upon review, the Supreme Court held that: (1) sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement; (2) a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record; and (3) the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue. View "In re C.I. Morris, Minor" on Justia Law