Termination of Parental Rights - Effects of Incarceration & Criminal History

Case Discussed:

In re: E.W. POPS, Minor

MiLW No. 07-91960

Michigan Court of Appeals - Unpublished Case

The Michigan Court of Appeals (MCA) reversed the order of a Michigan trial court terminating the parental rights of an incarcerated father.

After being sentenced to 18 months in prison for a parole violation, the Father/Respondent's parental rights were terminated following a petition from the State of Michigan.

The trial court found that the several factors listed in the State's petition either did not apply or were not specifically grounds for termination of parental rights. Specifically, the State offered evidence under three provisions of Section 712A.19b of the Michigan Compiled Laws (MCL) - 712.19b(3)(c)(i), (3)(g) and (3)(j).

What to take away from this case?

Incarceration is not automatically justification for termination of parental rights. Rather, why a parent is incarcerated, how long a parent is anticipated to be incarcerated, and the availability of qualified temporary caretakers may lead the trial court to finding that factors exist which justify termination of parental rights. These factors are by no means exhaustive - they are only some of the matters under review by the trial and appellate courts in In re: E.W. Pops, Minor, and by family courts, generally.

Family members who wish to serve as temporary foster parents to children of incarcerated parents must become licensed foster care providers, as defined by the Michigan Administrative Code and the Michigan Department of Health and Human Services (MDHHS) Foster Care Manual.

Misdemeanor criminal convictions are not treated the same as felony criminal convictions. The grandmother in Pops had some criminal history, but her convictions were misdemeanors, and were therefore not automatically disqualifying her for consideration as a guardian.

The nature of past criminal convictions and the length of time since the conviction(s) occurred matter greatly in determining whether a fellow member of the family could act as a guardian while mom and/or dad are incarcerated!

The grandmother in Pops was denied the opportunity to serve as a foster parent by the trial court, which accepted the suggestion of the State that some of the grandmother's past criminal convictions demonstrated a lack of "good moral character," and thus barred the grandmother from consideration as a temporary guardian for the child. But the MCA, citing the MDHHS' own Foster Care Manual, found that an assessment of the would-be foster care parent must be conducted by a state caseworker to determine whether the would-be foster parent presents any safety issues to the child. Further, the length of time since the offense(s) by the would-be foster parent, as well as the relationship of the past convictions to caring for children must be included in the assessment.

Closing Thoughts

  • Incarcerated and parolee parents whose children are already in the child welfare system face significant hurdles to maintaining their legal relationship.

  • If you are a parent facing time in a prison or jail, your plan for how to maintain a legal relationship with your children needs to include person(s) who can successfully qualify as a guardian by way of becoming foster care provider.

  • If you are trying to serve as a guardian for the child of an incarcerated family member, keep in mind that your criminal history may play a significant role in whether your petition will be opposed by the State and accepted or denied by the Circuit (trial) court.

Full Text of the MDHHS Foster Care Manual can be found here

Full opinion available here, courtesy of Justia.com

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