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April 08, 2009

MSC Opinion: In re Rood

On April 2, 2009, the Michigan Supreme Court issued an opinion in In re Rood, Case No. 136849, holding that the trial court violated the Respondent-father's procedural due process rights, where the trial court and the Department of Human Services (“DHS”) sent the father's notices of permanency planning proceedings to the wrong address even though DHS had the correct address. Chief Justice Kelly, and Justices Corrigan and Markman signed the lead opinion, Justices Young, Cavanagh, and Weaver each authoring a separate partial concurrence. Justice Hathaway did not take participate in the decision. A copy of the opinion and concurrences can be found here.

In Rood, the Respondent was the father of a three-and-a-half-year-old minor child, “A.” The father and the child's mother, Kops, ended their relationship after the father assaulted the mother. While the father was incarcerated, the minor child was taken into protective custody following allegations of neglect. The father contacted DHS and informed the Child Protective Services worker that he wished to have A placed in his care. DHS refused. During that telephone call, the father provided DHS with his current address and phone number.

The father's notices for the first four permanency planning hearings were mailed to the wrong address. The foster care social worker then erroneously recorded the father's address as “unknown.” The social worker made no attempt to contact the father. On January 24, 2007, the State petitioned to terminate the parental rights of both parents. The State alleged that the father had contributed to the minor child's unsafe environment by physically assaulting the child's mother, failing to pay child support since A was in foster care, and failing to contact the social worker to gain custody of A. This time, notice of the hearing was sent to the correct address.

After the termination hearing, the father testified that he had not received notices of the first four hearings and, moreover, that because he had not received notification from the court he assumed that A had been returned to her mother's custody. The court ruled that termination of the father's parental rights was appropriate because of his two past convictions for domestic violence, and because he had not made child support payments while A was in foster care.

The Court of Appeals reversed the trial court's decision and ruled that the efforts made by DHS and the court were inadequate and that the case should be remanded back to the trial court for reconsideration after Respondent has an opportunity to demonstrate his ability and willingness to parent.

The Court affirmed the holding of the Court of Appeals. The Court noted that the trial court erred in ruling that the father was responsible for his own lack of participation. Although the father was aware that his daughter was in foster care, because he not been notified of the proceedings until January 2007, he assumed she had been returned to the mother's custody. Secondly, with regard to child support, he was never ordered to pay child support and the state was obligated to pursue support from him. In short, even if the father had neglected to follow up with DHS, a showing of neglect alone merely triggers a parent's rights to participate in DHS services; it is insufficient to automatically terminate a person's parental rights. Termination is not appropriate unless “there is [also] no expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.” MCL ' 712A.19b(3)(g). Here, the Court noted that the father was never informed or properly offered evaluation and services and therefore the trial court could not make this determination. In short, in light of his lack of notice, Respondent's neglect did not constitute a waiver of his constitutional parental rights.

In his partial concurrence, Justice Cavanagh agreed that the trial court's termination of the Respondent's parental rights should be reversed, but for the reason that DHS and the state failed to make reasonable efforts to reunite the Respondent and the child. Justice Weaver did not think it was necessary for the Court to determine whether the state's actions violated the Respondent's due process rights. Justice Weaver also concurred in part with the majority and concluded that the trial court did not give the Respondent a “fair opportunity to participate.” However, Justice Weaver concluded that the Court unnecessarily attempted to resolve federal questions concerning Title IV-E of the Social Security Act. Finally, Justice Young also concurred, in part, with the majority on the narrow ground that given the inadequate attempts to provide Respondent with notice, the trial court erred in using the Respondent's failure to participate as a grounds for termination.

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