Michigan appeals court ‘reluctantly’ affirms denial of father’s pick for custody

Despite finding delays by the Department of Health and Human Services deeply troubling, the Michigan Court of Appeals reluctantly affirmed the denial of a removal order for a child in foster care, as the district court reasonably determined that the fictive kin suggested by his father was an inappropriate placement.

“When a child has been placed into care by an unchallenged order of the court, the state has a legitimate and important interest in protecting the child’s health and safety,” Judge Elizabeth L. Gleicher wrote. “When vindication of an unadjudicated parent’s custodial rights will necessarily involve a court-ordered custodial change and the elimination of state custody, the state’s interest permits the maintenance of continued, temporary placement while an investigation is conducted to ensure the appropriateness of the new placement.”

Judge Colleen A. O’Brien joined Gleicher’s decision in In re Dixon.

Judge Allie Greenleaf Maldonado penned a lengthy dissent, saying conditional reversal is the proper remedy for the trial court’s “erroneous removal” of the child.

“I would like to note that I cannot vouch for respondent-father’s ability to succeed as a parent in the same way that I cannot prospectively vouch for the ability of any parent to succeed,” she wrote. “However, future uncertainty does not justify the state in preemptively violating the constitutional right of parents to raise their children and, more importantly, the constitutional right of children to be raised by their parents. The possibility of failure does not justify the deprivation of the opportunity for success.”

Janet McLaren of the Genesee County Prosecutor’s Office, who represented the DHHS, declined to comment on the case.

Davison attorney Douglas I. Buck, II, who represented the father, did not respond to a request for comment by deadline.

Born and placed into foster care

On June 7, 2021, mother gave birth to AKD. Father was incarcerated at the time of birth and was not present to immediately sign an acknowledgement of parentage, or AOP. This prevented mother from placing father’s name on the birth certificate.

Mother named the child after father and the DHHS identified father as the putative father. Within days after AKD’s birth, the DHHS petitioned for his removal from his mother and for the termination of her parental rights.

Father appeared at the virtual hearing and was represented by counsel. He requested a DNA test and asked for an adjournment until the DHHS served the petition on him. The court explained that the DHHS could not include him as a respondent or grant him rights of a legal parent until paternity was officially determined.

By Sept. 29, 2021, DNA testing established father as AKD’s biological parent. By the next hearing on Nov. 23, 2021, the DHHS had received the AOP, submitted it to Vital Records and was awaiting return of the official copy.

The DHHS still had not filed an amended petition naming father as a respondent. By this time, AKD was five and a half months old.

At the next hearing, on Feb. 22, 2022, father had still not been named as a respondent by the DHHS. Father remained incarcerated with an earliest release date of October 2023, so his counsel argued that father should be able to place the child where he wanted.

The DHHS caseworker recommended keeping AKD in his current placement as he was doing very well and had been in the same home since he was very young, where he lived with his two older brothers. The caseworker had already reached out to the members of father’s family that he had identified as potential placements, but none were interested.

Father asked the court and DHHS to consider placement with his “significant other,” PM.

On May 10, 2022, the DHHS requested that AKD be kept in place after conducting a home study with PM. The caseworker expressed concern about PM’s on-and-off relationship with father and her nine instances of CPS history over a 14-year span. While the investigations did not all directly involve her, she was named in all of them.

There were also concerns due to PM’s history with AKD’s mother, who had already made threats to PM when she learned AKD might be placed in her home.

AKD’s legal guardian ad litem agreed with the DHHS recommendation, additionally citing financial concerns.

The court rejected father’s request and retained AKD in his foster placement.

DHHS authored a supplemental petition naming father as a respondent, detailing father’s criminal history and noting that his maximum release date was not until 2028.

The court considered his parental fitness and took jurisdiction over AKD, “removing” him from father’s care and custody.

Father appealed, noting that he had yet to be provided virtual parenting time sessions and that he had completed an advanced substance abuse program.

Right to control custody

Gleicher began with criticism of how the case was handled.

“Here, the court and DHHS bypassed father’s right to direct the placement of his child by delaying his legal ability to assert that right,” she wrote. “There is no legitimate excuse for the DHHS’s failure to timely declare father a respondent. Such delays run counter to the purpose of the Juvenile Code, which is the protection of children. And these delays impinged on father’s constitutional rights.”

The court also readily admitted that the law regarding the issue of the legal authority to leave AKD in foster care once father directed that the child be placed with PM was unclear.

“We frame the question presented as: what procedural protections must be afforded to protect the constitutional right of a late-identified parent to select a relative or fictive kin placement when the child is already in the care and custody of the state?” the judge asked. “Because the accuracy and legitimacy of a decision to deprive a parent of the right to control his child’s custody is fundamental, we submit that the proper inquiry weighs the interests at stake under the due process framework established in Mathews v. Eldridge,” a 1976 U.S. Supreme Court decision.

Gleicher said AKD was properly removed from his mother and placed in foster care, as he was without proper care and custody at his birth due to his mother’s substance abuse and neglect, and his putative father’s incarceration.

Had AKD been placed with a relative instead of in foster care, the DHHS would still have been obligated to assess the safety of that placement, she said. While the court agreed that a fit parent has a constitutional right to place his child with anyone he deems appropriate, AKD was under the DHHS’s care and supervision by the time father had the legal ability to place the child.

“Father’s incarceration and his absence at the child’s birth put him in the unenviable position of being unable to directly place his child without DHHS input,” Gleicher said. “When he was able to direct AKD’s placement the child was five and a half months old and living in a stable foster family placement.”

While father did enjoy a constitutional right to direct the care and custody of AKD before he was adjudicated, the state maintained a legitimate and important interest in protecting the child’s health and safety as he was placed into care by an unchallenged order of the court.

“We have no difficulty concluding that an abrupt removal of AKD from his foster care placement would have triggered a substantial risk of emotional harm to the child, even if the proposed placement were ultimately determined to be fit,” Gleicher wrote. “AKD was only five and one half months of age when father became eligible to direct his care and custody. The court and the DHHS had an interest in protecting him from an unsafe and emotionally damaging custodial transfer, which meant conducting some investigation into the appropriateness of father’s proposed placement.”

While the court sympathized with the father’s position, under the circumstances presented, his right to control the custody and care of his child had to yield — at least temporarily — to the state’s interest in preventing upheaval for AKD, a vulnerable child who had been in care with the same foster family for nearly two years.

Despite the ongoing violation of father’s constitutional rights, the trial court ultimately properly took jurisdiction over AKD in relation to father.

“Going forward, the court and DHHS must tread carefully to avoid repeating their mistakes,” Gleicher said, adding that the DHHS “must reevaluate PM as a placement for AKD and place more details of its investigation into the record.”

Finally, the judge said “the DHHS’s efforts have been grossly inadequate thus far. Accordingly, although we are affirming the court’s removal of AKD from his home and its exercise of jurisdiction in relation to father, we do not condone the court’s and DHHS’s treatment of father or the violation of his constitutional rights. We reluctantly affirm.”

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