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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160913_C328952_45_328952.OPN.PDF" target="_blank" rel="noreferrer noopener">In re Medina Minor, No. 328952</a>, the Court of Appeals affirmed a probate court’s order terminating the parental rights of a father to his son, finding that the probate court's authority to conduct termination proceedings is not limited to a situation where the child is in foster care.

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This case arises out of a termination proceeding instituted by the mother of JM in December 2014.&nbsp; Among other things, the mother alleged that the father lacked any bond with JM, and that upon termination of the father’s parental rights, her husband would adopt him.&nbsp; Several months later, in March 2015, the father moved to dismiss the proceeding, arguing that under MCL 712A.19b(1), the probate court could only assert jurisdiction over a termination proceeding if the child was in foster care at the time the proceeding was initiated.&nbsp; Because JM was in his mother’s custody, the father argued termination would be improper in this case.&nbsp; The court rejected the father’s interpretation of the statute, citing In re Marin, 198 Mich App 560, 568; 499 NW2d 400 (1993), for the proposition that “it is not necessary that the child be in foster care in order for the termination petition to be entertained.”

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During the bench trial regarding adjudication in July 2015, the probate court found that the father was a registered sex offender, who pleaded guilty to Criminal Sexual Conduct I for forcibly raping and sodomizing his nine-year-old cousin.&nbsp; The court also determined that he had been a gang member in the past.&nbsp; Regarding the father’s relationship with JM, the court determined that during JM’s three-year-old life, the father was absent for more than two years of it.&nbsp; Following the adjudication, the probate court concluded that termination was in JM’s best interests.

On appeal, the father first asserted that termination was improper because MCL 712A.19b(1), which authorizes a probate court to hold a termination of parental rights hearing, only grants such authority if the child is in foster care at the initiation of the proceeding.&nbsp; The court rejected this interpretation of the statute, finding it inconsistent with Marin, 198 Mich App 560; 499 NW2d 400 (1993), controlling precedent in this case.&nbsp; The court held that under Marin, § 19b(1) merely imposes “an obligation upon the probate court to conduct a termination hearing upon request where a child remains in foster care.”&nbsp; The statute does not imply that the probate court’s authority to conduct a termination of parental rights proceeding where the child does not remain in foster care is otherwise limited.

The father also argued that under §19b(1), the mother lacked standing to petition the probate court to terminate his parental rights to JM.&nbsp; He argued that under the statute, only a “prosecuting attorney, child, guardian, custodian, concerned person, agency, or children’s ombudsman” may file a termination petition.&nbsp; Because the statute does not include the term, “parent,” the father asserted the mother lacked standing.&nbsp; The court also rejected this assertion, holding that the plain and ordinary meaning of “custodian” certainly encompasses a custodial parent.&nbsp;

Lastly, the father asserted that the probate court’s determination by preponderance of the evidence that termination was in JM’s best interests was clear error.&nbsp; The court again disagreed, holding that in making its determination, the probate court duly considered several proper factors, including the child’s bond to the parent, the parent’s parenting ability, and the child’s need for permanency, stability, and finality.&nbsp; Given the evidence presented during the adjudication, the appellate court held that it was not left with a definite and firm conviction that the probate court made a mistake.

Partner

Jason L. Byrne

Labor and Employment

COA:  Foster care is not a requirement for termination of parental rights

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COA: Foster care is not a requirement for termination of parental rights

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