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BlogsPublications | June 9, 2016
2 minute read

Incarceration alone does not justify removal of parental rights, says COA

A trial court cannot terminate an incarcerated person’s parental rights without clear and convincing evidence that (a) there is a reasonable likelihood the child will be harmed if returned to the parent or (b) the parent cannot provide proper care or custody for the child, under the recent decision in In re E.W. Pops, No. 328818.  The Court of Appeals' per curiam opinion followed the holding in In re Mason, 486 Mich 142, (2010), that under MCL 712A.19b(3)(g), “Michigan permits an incarcerated parent to achieve proper care and custody thought placement with a relative,” which in this case would be the child’s paternal grandmother.  According to the court, the grandmother’s criminal record did not preclude her from serving as a foster-care provider.

The minor child in this case was removed from the respondent’s custody after the respondent pled no contest to fleeing from police a distance of 14 blocks while the child was in the car. Later, the respondent was sent to prison for a separate offense. At this point, the petitioner placed the child with respondent’s mother, who has been the child’s caregiver since his birth, but petitioner later removed the child when his grandmother was denied a license to be a foster-care provider. Petitioner eventually moved to terminate the respondent’s parental rights, which the trial court granted.

As a preliminary matter, the court determined that the petitioner did not follow its own guidelines when it determined that the grandmother could not become a licensed foster-care provider. Although the grandmother had prior criminal convictions, none rose to the level of outright barring her from obtaining her licensure and keeping the child in her custody. Therefore, she was not ineligible for licensure, as the petitioner had claimed. Additionally, the caseworker noted no safety concerns related to the child living with the grandmother, strengthening the respondent’s argument that grandmother could provide care and custody for his child.

The court then held that the trial court’s reliance on MCL 712A.19b(3)(c)(i), MCL 712A.19b(3)(g), and MCL 712A.19b(3)(j) in terminating the respondent’s parental rights was clearly erroneous because the father could care for the children through the grandmother’s custody. Pursuant to In re Mason, so long as the father provided the child proper care and custody through the placement with his grandmother, his incarceration alone was insufficient to terminate parental rights. The petitioner provided no evidence that the respondent had ever put his child at an “unreasonable risk of serious abuse or death,” nor that there was a likelihood that he would in the future. The trial court therefore clearly erred in terminating the respondent’s parental rights.