In re AH, Docket No. 224385.

• Citation: 627 N.W.2d 33,245 Mich. App. 77
• Decision Date: 07 May 2001
• Docket Number: Docket No. 224385.
• Parties: In the Matter of A.H., Minor. Family Independence Agency, Petitioner-Appellee, v. Jennifer Glass, Respondent-Appellant.
• Court: Court of Appeal of Michigan (US)

627 N.W.2d 33

245 Mich. App. 77

In the Matter of A.H., Minor.

Family Independence Agency, Petitioner-Appellee, v. Jennifer Glass, Respondent-Appellant.

Docket No. 224385.

Court of Appeals of Michigan.

Submitted December 5, 2000, at Lansing.

Decided March 13, 2001, at 9:10 a.m.

Released for Publication May 7, 2001.

Joseph K. Sheeran, Prosecuting Attorney, and Martha G. Mettee, Assistant Prosecuting Attorney, for the petitioner.

Charlotte L. Allen, Midland, for the respondent.

Before O'CONNELL, P.J., and ZAHRA and B.B. MacKENZIE¹, JJ.

O'CONNELL, P.J.

Respondent appeals as of right from an order terminating her parental rights to her daughter in accordance with M.C.L. § 712A.19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i) and M.C.L. § 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g). The child's natural father voluntarily relinquished his parental rights, and he is not a party to this appeal. Respondent argues that the termination of her parental rights was contrary to the Due Process and Equal Protection Clauses of the United States and Michigan Constitutions, U.S. Const., Am. XIV; Const. 1963, art. 1, §§ 2, 17. She further contends that petitioner failed to present clear and convincing evidence to warrant the termination. We affirm.

Petitioner filed its petition concerning the child on June 22, 1998, alleging (1) that petitioner had filed three previous child protection petitions with respect to respondent's other children, (2) that since the birth of her most recent child on January 15, 1998, respondent had been arrested twice for domestic violence, (3) that she had left the child in the care and custody of her cohabitant, Robert Huiskens, who had a long history of substance abuse leading to several arrests and who had been listed twice as a perpetrator of abuse or neglect of a child, and (4) that respondent had a long history of mental illness and was not taking appropriate medication, which placed the child at risk of harm. Petitioner requested an order terminating respondent's parental rights.

Respondent first argues that we must reverse the lower court's order terminating her parental rights because the initial petition, authorized under the then existing version of M.C.L. § 722.638; MSA 25.248(18), 1997 PA 168, violated her due process and equal protection rights. The constitutionality of a statute is a question of law that we review de novo. McDougall v. Schanz, 461 Mich. 15, 24, 597 N.W.2d 148 (1999); Citizens for Uniform Taxation v. Northport Public School Dist., 239 Mich.App. 284, 287, 608 N.W.2d 480 (2000).

The version of M.C.L. § 722.638; MSA 25.248(18), in effect at the time when petitioner filed the initial petition in this case, provided in pertinent part:

(1) The department shall submit a petition for authorization by the court under [MCL 712A.2(b); MSA 27.3178(598.2)(b) ], if 1 or more of the following apply:

* * *

(c) The parent's rights to another child were voluntarily terminated following the initiation of proceedings under [MCL 712A.2(b); MSA 27.3178(598.2)(b)], or a similar law of another state.

(2) In a petition submitted as required by subsection (1), the family independence agency shall include a request for termination of parental rights at the initial dispositional hearing as authorized under [MCL 712A.19b; MSA 27.3178(598.19b)].

During the pendency of the proceedings below, our Legislature amended the above language to provide:

(1) The department shall submit a petition for authorization by the court under [MCL 712A.2(b); MSA 27.3178(598.2)(b) ], if 1 or more of the following apply:

* * *

(b) The department determines that there is risk of harm to the child and either of the following is true:

* * *

(ii) The parent's rights to another child were voluntarily terminated following the initiation of proceedings under [MCL 712A.2(b); MSA 27.3178(598.2)(b)], or a similar law of another state.

(2) In a petition submitted as required by subsection (1), if a parent is a suspected perpetrator or is suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk, the family independence agency shall include a request for termination of parental rights at the initial dispositional hearing as authorized under [MCL 712A.19b; MSA 27.3178(598.19b)].

For whatever reason, respondent does not challenge the statute as it existed at the time that petitioner commenced the present action. Rather, she attacks the current, amended version, which took effect shortly after the proceedings below commenced.

We note preliminarily that respondent's challenge to the amended statute raises the issue whether she has standing to do so in the first place. To have standing, a party must have an interest in the outcome of the litigation that will ensure the party's sincere and vigorous advocacy. Kuhn v. Secretary of State, 228 Mich.App. 319, 333, 579 N.W.2d 101 (1998). "The plaintiff must also demonstrate that his substantial interest will be adversely affected in a manner distinct from the citizenry at large, i.e., an actual injury or likely chance of immediate injury different from the public." Detroit Fire Fighters Ass'n v. Detroit, 449 Mich. 629, 643, 537 N.W.2d 436 (1995). We conclude that respondent has standing to challenge the statute as amended. Her contention, that equal protection and due process prohibits the differential treatment of parents who have in the past voluntarily relinquished their rights to a child following the initiation of termination proceedings, relates to that language that the preamendment and postamendment statute have in common—namely that under certain circumstances petitioner lacks discretion regarding whether to request termination of the parent's rights. Consequently, respondent has an interest in the issue that ensures her sincere and vigorous advocacy.

We construe statutes as constitutional unless their unconstitutionality is clearly apparent. Thompson v. Auditor General, 261 Mich. 624, 646-647, 247 N.W. 360 (1933); Stevenson v. Reese, 239 Mich.App. 513, 517, 609 N.W.2d 195 (2000). The party challenging the statute bears the burden of overcoming the presumption of constitutionality. Id. In making this determination, courts look to the provisions of the whole law, as well as its object and policy. Frame v. Nehls, 452 Mich. 171, 183, 550 N.W.2d 739 (1996), citing Gomez v. United States, 490 U.S. 858, 864, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989).

The equal protection guarantee contained in both our federal and state constitutions requires that persons under similar circumstances be treated alike. In re Hawley, 238 Mich.App. 509, 511, 606 N.W.2d 50 (1999). However, it does not require that persons under different circumstances be treated the same. Id. The differential treatment at issue here is the requirement that under certain circumstances petitioner seek to terminate the rights of a parent who, after the initiation of termination proceedings, voluntarily relinquished her rights to a child. Respondent contends that the statute creates two classifications—those parents who have had parental rights terminated in the past, and those parents who have not—and treats them differently without justification. According to respondent, the first class receives differential treatment because M.C.L. § 722.638(2); MSA 25.248(18)(2) states that under certain circumstances petitioner "shall" request the court to terminate parental rights with respect to any child born to a parent whose parental rights were terminated in the past.

Courts employ strict scrutiny of a legislative classification when the classification interferes with the exercise of a fundamental right. Vargo v. Sauer, 457 Mich. 49, 60, 576 N.W.2d 656 (1998), citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). "A statute reviewed under this strict standard will be upheld only if the state demonstrates that its classification scheme has been precisely tailored to serve a compelling governmental interest." Doe v. Dep't of Social Services, 439 Mich. 650, 662, 487 N.W.2d 166 (1992). A parent's interest in the custody of her child and in the parent-child relationship is a fundamental right. M.L.B. v. S.L.J., 519 U.S. 102, 116-119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), citing Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Reist v. Bay Circuit Judge, 396 Mich. 326, 339-340, 241 N.W.2d 55 (1976) (plurality opinion); Faler v. Lenawee Co. Sheriff, 161 Mich.App. 222, 230, 409 N.W.2d 791 (1987).

The statute requires petitioner to determine both that "there is risk of harm to the child," and that the parent is "a suspected perpetrator or ... suspected of placing the child at an unreasonable risk of harm due to the parent's failure to take reasonable steps to intervene to eliminate that risk." MCL 722.638(1)(b) and (2); MSA 25.248(18)(1)(b) and (2) therefore addresses the protection of children who are at risk of harm and whose parent has voluntarily relinquished parental rights to another child as the result of previous child protective proceedings.

A straightforward reading of the statutory language clearly reveals that the Legislature's goal was the protection of children from unreasonable risks of harm. The statute therefore served a compelling state interest. See New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); State Fire Marshall v. Lee, 101 Mich.App. 829, 834, 300 N.W.2d 748 (1980). We further conclude that the statute is "precisely tailored" to serve this interest. The doctrine of anticipatory neglect recognizes that "[h]ow a parent treats one child is certainly probative of how that parent may treat other children." In re LaFlure, 48 Mich.App. 377, 392, 210 N.W.2d 482 (1973). See also In re Dittrick Infant, 80 Mich.App. 219, 222, 263...