In re Dixson

981 N.W.2d 62 (Mem)

IN RE G. M. DIXSON, Minor.

SC: 164625

COA: 358376

Supreme Court of Michigan.

November 10, 2022

Order

On order of the Court, the application for leave to appeal the June 23, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

McCormack, C.J. (dissenting).

I respectfully dissent from the Court's decision to deny leave because I do not believe the trial court should have terminated the respondent-mother's parental rights to her daughter. In my view, the child welfare system failed this family, and this failure is not anomalous. It illustrates the everyday problems of our child welfare system and how the legal standards put in place to protect families can work against them.

I. FACTS AND PROCEDURAL HISTORY

The respondent-mother and her daughter GMD became involved with the court when GMD's infant half-sister died of accidental asphyxiation from unsafe sleep practices in 2017. Child Protective Services learned that GMD, who was 18 months old, was living with family friends from church, the B Family. The respondent-mother needed some time to find suitable housing and to pursue her education and knew GMD would be well cared for there. But the arrangement was informal; the respondent-mother never set up a legal guardianship for GMD. And so, the Department of Health and Human Services (DHHS) petitioned to take temporary jurisdiction over GMD. She remained with the B Family while they completed the certification process to become licensed foster parents. For the next six years while the court considered GMD's future, she lived with the B Family and had regular visits with her mom.

When this case began in 2017, the respondent-mother was in a romantic relationship with MJ. The two had a son in October 2019. Now, MJ has full legal and physical custody of their son, and the respondent-mother has regular visits. The respondent-mother also has two older daughters who are in a guardianship with their grandmother. The respondent-mother has regular visits with them, too.

When the court took temporary jurisdiction over GMD, the respondent-mother received a treatment plan. The treatment plan required her to find suitable housing and employment and participate in parenting classes and therapy. In 2020, after concluding that the respondent-mother had failed to benefit from services it offered, DHHS filed a supplemental petition seeking to terminate her parental rights.

As evidence that the respondent-mother had failed to benefit from services, the petition alleged inadequate parenting skills during visits with GMD, a struggle to maintain healthy relationships, and difficulties following through with mental health treatment like medication and therapy. The complaint referred to an argument between the respondent-mother and her then-boyfriend MJ in the DHHS office as evidence that she hadn't benefited from domestic-violence and anger-management services. Her continued relationship with MJ was evidence that she wasn't making healthy choices for her family.

A supplemental petition seeking to terminate a parent's rights only starts the process of termination. After DHHS filed the petition, the trial court conducted a series of hearings to determine whether there was clear and convincing evidence that "[t]he conditions that led to the adjudication continue to exist," MCL 712A.19b(3)(c)(i ) ; the respondent-mother "fail[ed] to provide proper care or custody for the child," MCL 712A.19b(3)(g) ; or there is a "reasonable likelihood ... that the child will be harmed if ... returned to the home of the parent," MCL 712A.19b(3)(j).

Because of the COVID-19 pandemic, these hearings were delayed and ended up spanning from February 2020 to May 2021. The testimony at these hearings established that the respondent-mother had resolved many issues that led the court to take temporary, and then permanent, jurisdiction over GMD. She obtained a Section 8 housing voucher and a two-bedroom apartment she could afford. She found a job working at a nursing home to supplement monthly disability payments. After the birth of her son in October 2019, she stopped seeing MJ romantically; she only saw him at scheduled visits with her son.

The respondent-mother had completed parenting classes and therapy on domestic violence and anger management. But the initial opinion of the foster care worker assigned to GMD's case—Aliesha Alston—was that the respondent-mother had failed to benefit from these services. Alston's evidence of the alleged failure came from observations during supervised visits between GMD and the respondent-mother. The respondent-mother was "inconsistent" during visits and "struggle[d] to make proper parent choices." She missed some visits, but only because of emergency room visits associated with her high-risk pregnancy with her son. And by May 2021, Alston changed her mind. She explained that the respondent-mother "did benefit" as evidenced by "growth in regards to how to handle [GMD]." (Emphasis added.)

Alston also initially cited the respondent-mother's relationship with MJ as evidence that the respondent-mother failed to benefit from domestic-violence therapy. But of course, by the time these hearings concluded in May 2021, the respondent-mother hadn't been seeing MJ romantically for over a year and a half.

The respondent-mother's mental health was stable during the termination hearings. In February 2020, Alston testified that the respondent-mother had started taking her medication and participating in services. And the respondent-mother testified that she felt she had benefited from therapy, explaining in March 2020 that "me and [GMD] have a closer bond than we had before now."

But her mental health hadn't always been quite so stable. While the hearings were suspended because of the pandemic, Alston learned from the respondent-mother's father that the respondent-mother was struggling with her mental health. She was having trouble keeping her apartment clean and was acting erratically. At one point, when he picked her up in his car and she was not taking her medication, she grabbed the steering wheel from him while he drove.

But by May 2021, the respondent-mother testified that she was once again taking her medication and seeing her therapist twice a week. And her father confirmed it, explaining that since November 2020, "she's been doing excellent ... keeping her house up to date [and] taking her medication."

Everyone who testified agreed that GMD and the respondent-mother had a strong bond. GMD loved the respondent-mother and the respondent-mother loved GMD. During visits, Alston testified that the respondent-mother was "happy to see [GMD]. She often ask[ed] her about her day. And she [was] very involved in the activities." Alston reiterated the same in May 2021. And seven-year-old GMD expressed an interest in continuing to see her mom and her half-siblings.

As clear as it was that GMD loved her mom, it was also clear from the testimony of caseworkers who interacted with GMD that she had been understandably unsettled by the ongoing custody dispute. Because she didn't know what would happen to her, she felt anxious and sometimes acted out. She wanted the case to be over and to feel settled. She called the B Family parents Mom and Dad, and she wanted to continue living with them. Their home was the only home she remembered. But she also wanted to keep seeing the respondent-mother.

In May 2021, the trial court terminated the respondent-mother's parental rights. It found clear and convincing evidence that "the conditions that led to this adjudication ... continue to exist today" and that "it would not be safe for the child to be returned ... to the mother at this time or at a point in time in the reasonably foreseeable future." It cited the respondent-mother's ongoing struggles with mental health and the fact that she had driven on a suspended license to get to court that day. The court feared that GMD's well-being would be harmed if she was returned to her mother's care full-time, because she had a strong attachment with the B Family. At no point during the termination hearings did anyone—the DHHS staff, the respondent-mother's attorney, the lawyer-guardian ad litem, the judge—consider any other possible arrangement. Everyone focused solely on two choices: full custody or full termination.

The respondent-mother appealed the decision in the Court of Appeals. After reviewing her case, a panel affirmed the trial court's decision to terminate parental rights. The respondent-mother sought leave to appeal here.

The respondent-mother and GMD's case is both tragic and frustratingly commonplace. A mom expressed a strong interest to remain a part of her daughter's life. Her daughter expressed a similarly strong interest to see her mom. And yet the best our legal system has to offer them is a complete severing of their legal relationship, with no consideration of creative solutions that would benefit the whole family. I wish this case was an outlier. But in ten years reviewing records in termination cases, I have seen many just like this where our statutory process for protecting children has failed them. That is, the legal structure that governs these proceedings disserved the people it is supposed to protect. The respondent-mother and GMD deserve better. Indeed, we owe every family in the child-protection system more.

II. THE HARM OF REMOVAL

When the court took temporary jurisdiction over GMD back in 2017, thankfully, her day-to-day life didn't change. Because she was living with the B Family before court involvement and they were allowed to keep her in their home while becoming certified foster parents, these proceedings did not begin the way most child welfare cases do: with the forcible removal of the child from home. Although GMD was spared that trauma, most children are not.

Before a court can remove a child from their parent, it must make...