In Re Mason
| Decision Date | 26 May 2010 |
| Docket Number | Docket No. 139795. |
| Parties | In re MASON, Minors.Department of Human Services, Petitioner-Appellee,v.Richard Mason, Respondent-Appellant,andClarissa Smith, Respondent. |
| Court | Michigan Supreme Court |
Eric J. Smith, Prosecuting Attorney, and Robert John Berlin and Jurij Fedorak, Assistant Prosecuting Attorneys, for the Department of Human Services.
John J. Bologna, Troy, for Richard Mason.
Becker & Lundquist, PLC (by Eric Lundquist, Jr.), for the minor children.
We reverse the judgment of the Court of Appeals, which affirmed the circuit court's order terminating the parental rights of Richard Mason, the respondent-father (respondent), to his two sons, J. and C. The circuit court committed several legal errors and the Department of Human Services (DHS) failed in its duties to engage respondent in the proceedings against him. First, the court and the DHS failed to facilitate respondent's participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. The DHS further abandoned its statutory duties to involve him in the reunification process and to provide services necessary for him to be reunified with his children. The court effectively terminated respondent'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. Accordingly, we reverse and remand the case to the circuit court for further proceedings consistent with this opinion.
Respondent is the father of J., born March 13, 2004, and C., born December 12, 2006. Clarissa Smith is the boys' mother. The parents were never married, but respondent testified that they shared responsibility for J.'s care. The DHS's Child Protective Services (CPS) program first became involved with the family in April 2006; it provided services to Smith, but never to respondent. Until respondent was jailed for drunk driving in October 2006, shortly before C.'s birth, he did construction work to support the family.
While respondent was in jail, Smith brought the boys to visit him every week. On June 19, 2007, the DHS temporarily removed J. and C. from Smith's care. CPS had investigated Smith after the police found J. wandering outside the home unsupervised. The removal petition filed by the DHS also accused respondent of neglect, citing his criminal history and alleging that he “has failed to provide for the children physically, emotionally and financially.”
The court authorized the petition on June 20, 2007, at a hearing where respondent was represented by court-appointed counsel. The court notified respondent that the children had been removed and arranged for him to participate by telephone in a July 24, 2007, pretrial hearing. At the July 24 hearing, both respondent and Smith pleaded no contest to the allegations in the petition. The DHS planned to provide services to Smith with a goal of reunification. With regard to respondent, the court ordered supervised visits following his anticipated release from jail.
The DHS foster care worker, Steven Haag, later created a parent-agency treatment plan and service agreement (the “service plan”) requiring respondent and Smith to submit to substance-abuse and psychological assessments, complete parenting classes, maintain contact with the children, and establish legal sources of income and suitable homes. The court adopted the service plan with regard to both parents at an August 14, 2007, hearing, at which respondent was not present.1 Smith had requested placement of the children with respondent's family and the court ordered placement with the children's paternal aunt and uncle.
Respondent's incarceration did not end in August 2007 as expected, however. Rather, when his jail term expired, he was sentenced to prison for a prior larceny conviction because the drunk driving conviction violated his probation conditions. Respondent's earliest release date became July 1, 2009. The court then restricted his contact with the children to cards or letters. Although the DHS and the court knew of respondent's incarceration, they did not include him in subsequent hearings on November 13, 2007, February 11, 2008, May 8, 2008, July 8, 2008, and October 7, 2008. Nor did they inform him of his right under MCR 2.004 to participate in hearings by telephone. At the July 8, 2008, hearing, respondent-who had corresponded with his attorney-expressed through counsel that he was “extremely concerned with what is going on with this case.” He “truly want[ed] what's best for [his] children, as well as to be a part of their lives.” He did “very much want to be a part of any and all court proceedings.” His request to participate was apparently overlooked.
Finally, more than 16 months after he last participated, the court arranged for respondent to participate by phone in the December 3, 2008, permanency planning hearing. DHS worker Haag acknowledged at the hearing that respondent had provided proof that he completed an educational class and a business education technology course while in prison. Respondent also attended weekly Alcoholics Anonymous meetings and was on waiting lists for enrollment in parenting classes and counseling. But Smith had tested positive for drugs and acknowledged that her current residence was not suitable for her sons. Because the boys had been in care for almost 18 months, Haag contended that both parents' rights should be terminated. Both parents objected. Respondent's attorney observed that respondent was doing what he could and might be released by July 2009.
The court nevertheless authorized the termination petition. Smith did not appear for the termination hearing and has not appealed. With regard to respondent, the entirety of the petition's allegations was as follows:
Mr. Mason has been in prison since the boys were removed. His earliest release date is July 2009 and he could be incarcerated until July 2016. During his current incarceration, Mr. Mason has been participating in weekly 12-step meetings and completed a Business Education Technology program. He is waiting to be enrolled in parenting classes.
The petition sought termination of respondent's rights on the following grounds listed in MCL 712A.19b(3):
At the February 3, 2009, termination hearing, respondent opposed termination because of his imminent release from prison. He requested a one-month adjournment until March 2009 to ascertain whether the parole board would release him the following July. The children's attorney supported respondent's request to adjourn to assess the situation since the children were living with respondent's family. Respondent had arranged a construction job with his brother and housing with his mother in anticipation of his release from prison.
Only Haag and respondent testified at the hearing. Haag candidly admitted that he had never spoken with respondent. Haag stated that respondent had not provided verification of completion of any programs required by the service plan. In particular, respondent had not completed a substance-abuse program or received an evaluation by a psychologist. Haag opined that termination was in the children's best interests because, even if respondent were to be released from prison in July 2009, it would take him another six months to comply with the service plan and his parole conditions.
Respondent testified regarding the classes he completed in prison. He was not using drugs or alcohol, as a drug test confirmed. He stated that a prisoner could not request a psychological evaluation. He did paid work while in prison. With regard to his criminal past, he explained that a 1997 criminal sexual conduct conviction involved consensual sexual behavior with his 16-year-old girlfriend when he was 17. He also described brief jail sentences and probationary periods resulting from this and his other past offenses. Finally, respondent expressed his desire to care for his sons. He had employment with his brother waiting for him upon his release. He planned to live with his mother, who had a three-bedroom home with “substantial room for the boys.”
The court nonetheless terminated respondent's parental rights on the basis of each of the grounds alleged. It faulted him because he had not personally cared for the children for at least the past two years. And his incarceration precluded him from taking advantage of services offered by the DHS. Even if he were to be released in July, the court concluded that he would need at least 6 months to comply with...
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...circumstances under MCL 712A.19a(2)." In re Rippy, Minor , 330 Mich. App. 350, 355, 948 N.W.2d 131 (2019), citing In re Mason , 486 Mich. 142, 152, 782 N.W.2d 747 (2010).2 Furthermore, MCL 712A.19a(2) provides, in pertinent part:The court shall conduct a permanency planning hearing within 3......
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...(2012) (reversing a termination after the trial court made an erroneous factual finding during the adjudication phase); In re Mason , 486 Mich. 142, 782 N.W.2d 747 (2010) (reversing a termination based on the failure to facilitate the respondent’s involvement and participation during the ad......
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...(opinion by Corrigan, J.). The interpretation and application of statutes and court rules are also reviewed de novo. In re Mason, 486 Mich. 142, 152, 782 N.W.2d 747 (2010). Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unco......
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