Parental Rights and Incarceration
In an important decision released May 26, 2010, the Michigan Supreme Court ruled that incarceration in prison is not sufficient grounds for termination of parental rights. See In Re Mason Minors, 2010 WL 2103996 (2010). A full text of the Court’s ruling can be found on the Michigan Supreme Court web site:
http://www.courts.michigan.gov/supremecourt/Clerk/01-10/139795/139795-Opinion.pdf
This important opinion, authored by Justice Maura D. Corrigan, firmly establishes the proposition that - standing alone - prison incarceration does not provide adequate grounds for termination. In her criticism of Macomb County Juvenile Division trial judge Tracey Yokich, Justice Corrigan wrote:
The court effectively terminated repondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future. Incarceration alone is not a sufficient reason for termination of parental rights.
Michigan law allows for termination when each of three conditions are present:
1. The period of imprisonment is such that the child will be deprived of a normal home for at least 2 years.
2. The parent has not provided proper care and custody for the minor child.
3. There is no reasonable expectation that the parent will do so within a reasonable time.
The Supreme Court opined that the trial court failed to properly consider the possibility that Mr. Mason had, and would, continue to provide for the proper care and custody of the minor children with the assistance of his family.
In the case, the Mason children were placed in the home of Mr. Mason's relatives after the trial court took jurisdiction over the children. This ruling is good news for parents who find themselves in prison for limited periods of time and hope to have a reunified family once they are released. For several reasons, it will likely also guide family protection litigation for years to come. First amongst those reasons is the overall tone of the opinion itself. Justice Corrigan, joined by Chief Justice Kelly and Justices Cavanagh and Young, is highly critical of both the trial court and DHS. The Supreme Court was especially critical of the de minimis efforts of the DHS worker (Mr. Haag) to provide reunification services to Mr. Mason while he was in prison.
Additionally, the trial court and Mr. Mason’s court appointed attorney are criticized for failure to follow the Michigan Court Rule provision (MCR 2.004) which allows for incarcerated respondents to participate by phone in each hearing in which DHS is asking the court to make rulings concerning the minor child. MCR 2.004(F) specifically states:
A court may not grant the relief requested by the moving party concerning the minor child if the incarcerated party has not been offered the opportunity to participate in the proceedings, as described in this rule.
The Supreme Court specifically rejected the argument made by DHS attorneys that this provision was satisfied when Mr. Mason was allowed to participate in two out of seven hearings that affected his parental rights. Although MCR 2.004(F) has been in existence in its current form since January of 2003, the ruling in the Mason case caused courts and counsel to be more diligent in conforming with it. This opinion makes clear that few orders affecting minor children will be considered valid without the participation of the incarcerated parent.
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