IN RE ANGEL HUISKENS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of A.H., Minor.
FAMILY INDEPENDENCE AGENCY,
FOR PUBLICATION
March 13, 2001
9:10 a.m.
Petitioner-Appellee,
v
No. 224385
Bay Circuit Court
Family Division
LC No. 90-003882-NA
Updated Copy
April 27, 2001
JENNIFER GLASS,
Respondent-Appellant.
Before: O'Connell, P.J., and Zahra and B.B. MacKenzie*, JJ.
O'CONNELL, P.J.
Respondent appeals as of right from an order terminating her parental rights to her
daughter in accordance with MCL 712A.19b(3)(c)(i); MSA 27.3178(598.19b)(3)(c)(i) and MCL
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, US 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.
_____________________________
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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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 MCL
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 NW2d 148 (1999); Citizens for Uniform Taxation v Northport
Public School Dist, 239 Mich App 284, 287; 608 NW2d 480 (2000).
The version of MCL 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:
* * *
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(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)]. [1997 PA 168.]
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)]. [1998 PA 428.]
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.
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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 NW2d 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 NW2d 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 NW 360 (1933); Stevenson v Reese,
239 Mich App 513, 517; 609 NW2d 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 NW2d 739 (1996), citing Gomez v United States, 490 US 858, 864; 109
S Ct 2237; 104 L Ed 2d 923 (1989).
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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 NW2d 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
MCL 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 NW2d
656 (1998), citing Massachusetts Bd of Retirement v Murgia, 427 US 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 NW2d 166
(1992). A parent's interest in the custody of her child and in the parent-child relationship is a
fundamental right. MLB v SLJ, 519 US 102, 116-119; 117 S Ct 555; 136 L Ed 2d 473 (1996);
Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972), citing Skinner v
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Oklahoma, 316 US 535, 541; 62 S Ct 1110; 86 L Ed 1655 (1942); Reist v Bay Circuit Judge, 396
Mich 326, 339-340; 241 NW2d 55 (1976) (plurality opinion); Faler v Lenawee Co Sheriff, 161
Mich App 222, 230; 409 NW2d 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 US 747, 756-757; 102 S Ct 3348; 73 L
Ed 2d 1113 (1982); State Fire Marshall v Lee, 101 Mich App 829, 834; 300 NW2d 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 NW2d 482
(1973). See also In re Dittrick Infant, 80 Mich App 219, 222; 263 NW2d 37 (1977). In In re
Powers, 208 Mich App 582, 592; 528 NW2d 799 (1995), this Court extended the doctrine of
anticipatory neglect "to guarantee the protection of a child who is not yet born, i.e., because of
the past conduct of another person, there is good reason to fear that the second child, when born,
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will also be neglected or abused." The current version of the statute requires petitioner to
commence proceedings against parents who in the past have had their parental rights terminated,
voluntarily or otherwise.1
The Legislature therefore effectively codified the doctrine of
anticipatory neglect and then added the additional element of a risk of harm to the child. To this
extent, the challenged provisions target children whose parents have had their parental rights
terminated in the past and who are at risk of harm. We doubt that the statute need have been any
more carefully tailored to protect our state's interest in safeguarding its most vulnerable citizens.
Therefore, while the statute does in effect create a separate class of parents, we do not conclude
that it violates equal protection.
Nor do we conclude that MCL 722.638(1)(b)(ii); MSA 25.248(18)(1)(b)(ii) violates
procedural due process. The United States Supreme Court has set forth a three-part test for
evaluating a due process issue within the context of a parental rights termination proceeding.
Under the test, courts must consider (1) the private interest involved, (2) the risk of error that the
procedure creates, and (3) the countervailing governmental interest. We have already determined
that respondent's interest involves a fundamental right and that the governmental interest in
safeguarding children is compelling. Respondent argues that the requirement that petitioner
request termination under the circumstances stated in the statute is not sufficiently flexible and
creates a risk that a person's rights will be terminated erroneously. We reject this argument.
After filing the petition, petitioner must still satisfy the statute's "risk of harm" requirement and
establish 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
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eliminate that risk." Further, a request for termination does not necessarily mean that the court
will grant the request. As our Supreme Court discussed in In re Trejo Minors, 462 Mich 341,
356; 612 NW2d 407 (2000), the "best interests" provision of MCL 722.19b(5); MSA
27.3178(598.19b)(5) allows the trial court to conclude that termination is clearly not in the child's
best interest.
We therefore conclude that, on balance, MCL 722.638(1)(b)(ii); MSA
25.248(18)(1)(b)(ii) does not violate procedural due process.
Respondent next argues that petitioner failed to present clear and convincing evidence to
establish grounds for terminating her parental rights. We disagree. Our review of this issue is
for clear error. Trejo, supra at 356-357.
The family court, in a detailed written opinion, found that petitioner had established that
termination of respondent's parental rights was warranted under MCL 712A.19b(3)(c)(i); MSA
27.3178(598.19b)(3)(c)(i):
(3) The court may terminate a parent's parental rights to a child if the court
finds, by clear and convincing evidence, 1 or more of the following:
* * *
(c) The parent was a respondent in a proceeding brought under this
chapter, 182 or more days have elapsed since the issuance of an initial
dispositional order, and the court, by clear and convincing evidence, finds either
of the following:
(i) The conditions that led to the adjudication continue to exist and there is
no reasonable likelihood that the conditions will be rectified within a reasonable
time considering the age of the child.
The court also determined that termination of respondent's parental rights was warranted under
MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g), which provides:
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The parent, without regard to intent, fails to provide proper care or custody
for the child and there is no reasonable expectation that the parent will be able to
provide proper care and custody within a reasonable time considering the age of
the child.
Regarding the court's determination under subsection 3(c)(i), we note that approximately
one year passed between the court's initial disposition and the termination hearing. When the
family court determined that it had jurisdiction over this case, respondent was living with Robert
Huiskens. Respondent had been arrested twice since the child's birth for domestic violence and
disorderly conduct. Huiskens also had a history of substance abuse and had several arrests.
Following arguments with Huiskens, respondent herself repeatedly requested that child
protective services remove the child from her home.
At the first dispositional hearing,
respondent was living with Huiskens while the child was in foster care. Respondent had not
participated in any counseling, and she had missed four of the first five scheduled visitations with
the child.
The court did not clearly err in finding that petitioner had proved that the conditions that
led to the original adjudication continued to exist and that no reasonable probability existed that
respondent would rectify them within a reasonable time, MCL 712A.19b(3)(c)(i); MSA
27.3178(598.19b)(3)(c)(i). Respondent did not substantially comply with the parent/agency
agreement. She did not demonstrate that she could provide adequate housing for the child and
herself, she missed roughly half of her scheduled visits, she did not properly supervise the child,
and she even requested that her visitation time be reduced. Respondent continued an abusive
relationship with Huiskens at least until just before the termination proceedings began. Although
she testified that she was employed and working at least forty hours a week, petitioner presented
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evidence that her employer dismissed her one month before, leaving her dependent on Huiskens
for financial support. Finally, she did not undergo mental health counseling or substance abuse
counseling even though petitioner had recommended such counseling. Therefore, we agree with
the trial court that no reasonable likelihood existed that respondent would rectify the conditions
that led to the adjudication within a reasonable time, given the child's age. This evidence also
supported a finding that, without regard to her intent, respondent failed to provide proper care
and custody for the child, and no reasonable expectation existed that she would be able to do so
within a reasonable time, MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).2
Respondent's final argument is that the trial court clearly erred in failing to conclude that
terminating her parental rights was not in the best interest of the child. We disagree.
MCL 712A.19b(5); MSA 27.3178(598.19b)(5) provides:
If the court finds that there are grounds for termination of parental rights,
the court shall order termination of parental rights and order that additional efforts
for reunification of the child with the parent not be made, unless the court finds
that termination of parental rights to the child is clearly not in the child's best
interests.
This section
provides the court the opportunity to find that termination is clearly not in the
child's best interest[s]. The primary beneficiary is intended to be the child.
Secondarily, the provision affords respondents additional protection by permitting
the court to consider evidence, within the whole record, that termination is clearly
not in a child's best interests. [Trejo, supra at 356.]
The record below supports the court's finding that respondent failed to provide proper
care and custody for the child. Given respondent's history of mental health and substance abuse
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problems, her inability or unwillingness to participate in counseling during the year that this case
was pending, and her continuing involvement in a violent relationship, we agree with the trial
court that the facts of this case did not support a finding that terminating respondent's parental
rights was clearly not in the child's best interests. The child was not yet two years old when
respondent's parental rights were terminated. The evidence adduced below established that she
was not attached to respondent and had thrived in foster care. The court found that she was
"healthy, happy, and highly adoptable." Under these circumstances, the court did not err in
determining that terminating respondent's parental rights was not adverse to the child's best
interests.
Affirmed.
/s/ Peter D. O'Connell
/s/ Brian K. Zahra
/s/ Barbara B. MacKenzie
1
MCL 722.638(1)(b)(i); MSA 25.248(18)(1)(b)(i) also requires petitioner to commence action
against a parent whose rights were terminated involuntarily. Further, under MCL 722.638(2);
MSA 25.248(18)(2), petitioner "shall" request termination where the child is at risk of harm and
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."
2
In any event, we note that the undisputed facts of this case brought it squarely within MCL
712A.19b(3)(m); MSA 27.3178(598.19b)(3)(m), which provides that a court may terminate the
rights of a parent whose "rights to another child were voluntarily terminated following the
initiation of proceedings under section 2(b) of this chapter or a similar law of another state."
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