Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
In re ROOD, Minor. ____________________________________ DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellant, v DARROLL DONALD ROOD, Respondent-Appellee.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED APRIL 2, 2009

No. 136849

BEFORE THE ENTIRE BENCH (except HATHAWAY, J.) CORRIGAN, J. The Department of Human Services (DHS) challenges reversal by the Court of Appeals of a circuit court order terminating the respondent father's parental rights to his daughter. In re Rood, unpublished opinion per curiam of the Court of Appeals, issued June 12, 2008 (Docket No. 280597). We affirm the judgment of the Court of Appeals. As that court opined, respondent behaved as a "less-than-ideal parent" and "shares responsibility" for his lack of communication with the DHS and the court. Id. at 3. But the "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary

custody of their child to the State." Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982). Accordingly, "[w]hen the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id. at 753-754. Here, the attempts at communication with and notice to respondent about the proceedings, in part as a result of errors by the DHS and the court, failed to comply with state and federal requirements and, under the circumstances of this case, denied respondent minimal procedural due process. Because his substantial rights were affected, the Court of Appeals correctly remanded this case in order to give respondent "a fair opportunity to participate." In re Rood, slip op at 5. FACTS AND PROCEEDINGS This case concerns respondent's daughter, A., who was born out of wedlock to respondent and Laurie Kops on April 16, 2004.1 Their relationship ended when A. was about one year old. After that, respondent only had sporadic contact with A. Respondent last saw A. in December 2005, when he went to Kops's home to celebrate Christmas with A. At that time, he and Kops had an
1

Respondent executed an affidavit acknowledging paternity. The affidavit of paternity does not appear in the record, but presumably respondent acknowledged parentage under MCL 722.1003(1), which provides: "If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage." Such an acknowledgment "establishes paternity, and . . . may be the basis for court ordered child support, custody, or parenting time . . . ." MCL 722.1004. Accordingly, respondent's status is that of a legal, not a putative, father.

2

argument that culminated in a domestic violence charge against him.2 He testified that he no longer saw A. because, after that event, he was ordered to have no contact with Kops.3 On March 21, 2006, the Mason County DHS placed A. in foster care after confirming reports that Kops had not been caring for A. but had left all three of her children with friends without making provisions for their care. Kops's

whereabouts were unknown. The Child Protective Services worker for the DHS knew that respondent was A.'s father and understood that respondent was in the Mason County jail on the day the DHS took protective custody of A. The record reflects--and the parties do not dispute--that A.'s placement with the state following removal was designated for federal funding under subchapter IV, part E, of the United States Social Security Act, 42 USC 670 et seq. (Title IV-E). Accordingly, as we will explain in detail, federal law governing child protective proceedings is directly implicated as the case is subject to federal audit and review. Respondent confirmed that he had been jailed for the domestic violence conviction that stemmed from the Christmas 2005 incident. He pleaded guilty on

A police report dated December 27, 2005, reflects Kops's claims that respondent verbally and physically abused her, causing injury, on December 25, 2005. Respondent denied Kops's version of events, but pleaded guilty of domestic violence, second offense, MCL 750.81(3), and was sentenced to time served. He later admitted that a prior no contact order was already in place at this time; he had violated this prior order on Christmas in order to see A.
3

2

3

March 14, 2006, and, after being sentenced to time served, he was released from jail around the same time that A. was removed to foster care. The day after his release, Kops called to inform him that A. was in DHS custody. On March 23, 2006, he telephoned the DHS and informed Child Protective Services worker Susan Straley that he had been released from jail. Straley had not previously attempted to contact him. He testified that he told her he wished to have A. placed with him but Straley told him "they looked to place the child back with the mother not the father[]."4 Straley told respondent that he could call the DHS to set up visits with A. Respondent testified that, in light of Kops's history of denying him access to A., he did not wish to set up visits and risk seeing her over a brief period and then never seeing her again if she was placed back in Kops's care. He did not "think any kid should be put through a push and pull with their parents." He further testified that Straley did not tell him that the DHS would create a parent/agency treatment plan and service agreement (service plan) to provide services to A.'s parents in an attempt to reunify her with her family. Respondent testified that he gave Straley his cell phone number, the cell phone number of his girlfriend, Corinna Marshall,5 and their address on Manistee Street in Manistee, Michigan. Straley then gave him the name and phone number Straley denied telling respondent that the DHS would place A. only with her mother. She testified that, although the DHS does generally try to reunify a child with the custodial parent, she did not recall telling respondent that the DHS only worked toward reunification with mothers, as opposed to fathers.
5 4

Straley attested that respondent gave her only one cell phone number.

4

of the DHS foster care worker who would take over the case on March 30, 2006, Leasa Patterson. Straley also furnished respondent's phone number and Manistee Street address to Patterson. On March 29, 2006, the Family Division of the Mason Circuit Court mailed a preliminary hearing notice to respondent at an incorrect address on 10th Street in Manistee. The notice was returned to the court as undeliverable on April 6, 2006. The record does not reveal why the court used the inaccurate 10th Street address.6 Patterson drafted an initial service plan (ISP) dated April 19, 2006, that outlined services designed to help Kops regain custody of A. The ISP erroneously stated that respondent's whereabouts were "unknown." Patterson did not try to contact respondent, despite having contact information for him. Lacking proper notice, respondent did not participate in the April 20 preliminary hearing. After the hearing, the court ordered that A. remain in the care of the DHS, that Kops receive parenting time, and that "[r]easonable efforts shall be made to preserve and reunify the family to make it possible for the child(ren) to safely return home." The first notice respondent actually received that was mailed to his correct address advised him that a dispositional hearing involving Kops would take place The court record contains documents from unrelated matters, including certificates of conviction, apparently linking respondent to the 10th Street address. Respondent claims that he never lived at that address. It is not clear why this address was included on the certificates of conviction. Although various addresses are listed for respondent on the exhibits and police reports attached to the certificates, the 10th Street address is not among them.
6

5

on June 8, 2006. Respondent attended this hearing, during which Kops entered a no contest plea to the neglect allegations. Accordingly, the court retained The court did not address

jurisdiction over A. under MCL 712A.2(b).7

respondent's rights and conduct; rather, the court stated that he was not yet a respondent because no allegations had been made against him. Respondent later testified that, until this hearing, he had not been aware that a neglect case against Kops was pending; from his conversation with Straley, he understood only that Kops had left A. with someone else and that Kops's whereabouts were unknown on the day that the DHS took protective custody. At the hearing, respondent gave the court his Manistee Street address and a cell phone number. The court told him he could obtain copies of the petition and other paperwork. According to Patterson, respondent knew he could speak with her after the hearing, but he "he got upset and stormed out of the courtroom and left." A second dispositional hearing was held on June 29, 2006. For unknown reasons, instead of using the Manistee Street address that the court had used successfully and that respondent had again provided on June 8, the court sent

7

MCL 712A.2(b)(1) confers court jurisdiction over a juvenile

[w]hose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship.

6

notice of this hearing to respondent at the 10th Street address. Thus, respondent did not appear. After the hearing, the court ordered that A. stay in the care of the DHS but that efforts would continue toward reunification with Kops. With regard to respondent, the order simply stated: "Notice is to be given to the legal/putative father(s) as required by law." A week later, on July 6, 2006, Patterson contacted Kops to ask if Kops knew how to contact respondent. Kops told her--apparently falsely--that he was in Irons, Michigan.8 Patterson testified that she contacted Kops because the phone number she had for respondent did not work. Patterson did not record her attempt to call respondent or the phone number she used. The updated service plan (USP) completed by Patterson for the period April 19, 2006, to July 17, 2006, however, lists the same phone number for respondent found in the April 19, 2006, ISP; the USP does not include the new phone number provided by respondent during the June 8 hearing at which Patterson was present. Two additional dispositional/review hearings took place on September 14 and December 7, 2006. The court mailed notice of the September hearing to respondent at the incorrect 10th Street address. The court did not send any notice at all of the December hearing. On December 12, 2006, the court notified the parties that a permanency planning hearing would take place on March 1, 2007. The notice advised that the hearing "may result in further proceedings to terminate
8

Respondent testified that he did not live in Irons while this case was

pending.

7

parental rights." The notice was again sent to respondent at the incorrect 10th Street address and was returned to the court as undeliverable. Patterson attempted to contact respondent on December 20, 2006, when she sent a copy of the most recent service plan and her business card to the Manistee Street address; on December 28, 2006, that mail was returned to her as undeliverable.9 In January 2007, Patterson again asked Kops if she knew how to locate respondent; Kops replied that she did not know his whereabouts. On January 24, 2007, Patterson filed a petition seeking to terminate the parental rights of both Kops and respondent. The petition alleged that Kops could not provide a stable home for her children and had failed to make progress under the service plan. It further alleged that respondent had contributed to A.'s unsafe and neglectful environment--and therefore that his rights should be terminated under MCL 712A.19b(3)(g)--by physically assaulting Kops in December 2005 in A.'s presence, failing to pay child support since A. was placed in foster care, failing to contact Patterson to participate in services in order to gain custody, and failing to have contact with A. after she was placed in foster care. Finally, the petition alleged that respondent's rights should be terminated under MCL
9

Both respondent and Marshall testified that they lived at the Manistee Street address in a home owned by Marshall's parents but moved to an apartment on Ramsdell Street from July 2006 to June 2007 while they fixed up the home. Marshall stated that she forwarded the mail for herself and "all occupants" during that time. Marshall and respondent stated that they each continued to receive mail at the Manistee Street address as well. The parties could not explain why Patterson's December 20, 2006, mail was returned to her.

8

712A.19b(3)(j) because A. was likely to be harmed if placed in his home since respondent had a "criminal history and pattern of instability . . . ." The petition recounted several convictions: breaking and entering a building with intent to steal, MCL 750.110, in 1999; misdemeanor attempt to resist and obstruct an officer, MCL 750.479, in 2005; misdemeanor domestic violence, MCL 750.81(2), in 2005; and the domestic violence conviction stemming from his dispute with Kops in December 2005. Proceedings to terminate respondent's parental rights were originally scheduled for March 22 and 23, 2007. On January 25, 2007, the court sent notice of the proceedings to respondent at the correct Manistee Street address. At the March 1, 2007, permanency planning hearing, the termination proceedings were adjourned. On May 23, 2007, respondent called Patterson and left a message for her. He testified that he had spoken to the prosecuting attorney, who advised him to contact Patterson. She returned his call on May 25. At that time he told her that he wanted custody of A. and was capable of raising her. Patterson instructed respondent to obtain counsel to represent him at the termination proceedings. The next review hearing took place on June 12, 2007. Respondent received notice of this hearing, which the court mailed to the Manistee Street address, and he appeared at the hearing. On June 14, 2007, the court appointed attorney Jeffrey Nellis to represent respondent. The termination hearing took place on August 30 and 31, 2007. A. was just under 3

Download IN RE AYDEN ROOD MINOR.pdf

Michigan Law