Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

June 23, 2009

136988

_____________ _______________ _____________

In re SKYLER LERO Y MCBRIDE, ALEXANDER GARAND MCBRIDE, and SAWYER DALE MCBRIDE, Minors.

_____________ _______________ _____________
DEPARTMENT OF HUMAN SERVICES, Petitioner-Appellee,

v SC: 136988 COA: 282062 Bay CC Family Division: RONALD D. MCBRIDE, JR., 06-009381-NA Respondent-Appellant, and

SUSAN MCBRIDE, Respondent.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the July 15, 2008 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

C ORRIGAN , J. ( dissenting ).

I would reverse the order terminating the re spondent father’s parental rights to his three sons. As the petitioner, Department of Human Services (DHS), concedes, respondent was unlawfully denied his right to counsel 1 and his right, as an incarcerated party, to participate by telephone in proceedings concerning his children. 2 Moreover, in light of these fundamental errors, the Mich igan Attorney Genera l (AG) and Solicitor General (SG) filed a brief amicus curiae 3 urging that reversal is required by Michigan

1 MCL 712A.17c; MCR 3.915(B)(1).

2 MCR 2.004.2

statutory law and court rules, as well as by federal constitutional law. I agree that a miscarriage of justice has occurred. I strenu ously dissent from this Court’s decisions to countermand its previous or der directing oral arguments 4 and to now deny leave to appeal altogether.

I. Facts and Proceedings

Respondent is the father of three sons who were 8, 10, and 13 years old, respectively, when these proceedings agains t their mother began in September 2006. Respondent has been incarcerat ed with the Department of Corrections (DOC) since

2004. 5 His earliest possible release date from prison is June 30, 2015. Upon his incarceration, his sons remained in the care of his wife, and their mother, Susan McBride. Respondent maintained his relati onship with his children, who also had relationships with respondent’s extended family; th e family facilitated the childre n’s visits with respondent in prison.

In September 2006 Susan was briefl y jailed and the DHS sought temporary custody of the children. Susan was tem porarily released from jail to attend the September 14, 2006, preliminary hearing, at which she was represented by courtappointed counsel. Th e children’s maternal grandmother offered to care for the children for the duration of Susan’s detention in jail, but the court determined that both Susan and her mother actively abused prescription drugs and were not fit to provide proper care. Accordingly, the children were placed in fost er care. Respondent was notified of these events several days later.

3 The AG notes that the local pr osecutor shall serve as the lega l consultant to the DHS in child protective proceedings, MCL 712A.17( 5), and the AG has supervisory authority over local prosecutors, MCL 14.30. The AG also has general duties to prosecute suits involving state departments, MCL 14.29, and, through the SG, to represent the state in this Court, MCL 14.28. But here the AG ha s elected to participate only as an amicus

curiae as he takes a position adverse to that of the Bay County Prosecuting Attorney, who represents the DHS.

4 In re McBride

, 763 NW2d 633 (2009); In re McBride

, 483 Mich 892 (2009).

5 Respondent was convicted of first- a nd second-degree criminal sexual conduct involving a minor. The victim was not one of respondent’s children. Significantly, no statute requires termination of a parent’s right s to his children merely on the basis of the

nature of such convicti ons. MCL 712A.19b(3)(n)( i ) permits termination if a parent commits certain offenses, including cr iminal sexual conduct, if the court also “determines

that termination is in the child’s best in terests because continuing the parent-child relationship with the parent would be harmful to the child [.]” The DHS did not seek

termination under this section.3

On September 29, 2006, one day after her release from jail, Susan appeared at the adjudication hearing and admitte d the allegations contained in the DHS’s neglect petition. She admitted her ongoing drug problem, that she had refused in-patient mental health treatment, and that she had inappropriately st ruck her 15-year-old son in the face. The

court determined that Susan wa s presently not able to care for the children, but ordered substance abuse services, counseling, and vis itation with the goal of ultimately returning

them to her care.

Although respondent had a ri ght to communicate with th e court by telephone in order to participate in the child protective proceedings, he was not informed of this right. He received notices concerning the hearings, 6 but the DHS and the c ourt failed to comply with MCR 2.004(B) and (C), wh ich require the DHS to move the court to arrange for telephonic communication with a respon dent parent through the DOC.

Respondent’s sister, Kelly McBride, did appe ar at the hearing. The record reflects that Kelly had regular contact with DHS wo rkers between September 14 and 29 and had

offered to care for th e children in her home. The cour t rejected Kelly’s request for placement with her, stating that although she “appears to be suitable,” the court would not place the children with her beca use she lived more than an hour away from the children’s current community; the court and the DHS preferred for the childre n to live closer to their

mother and to remain in their current schools. Kelly then asked the court to permit the

children to continue to visit th eir father in prison. When th e court opined that it would be inappropriate to require foster parents to tr ansport them, Kelly offered that she and the children’s grandparents would drive them to the visits. The court denied her request with little further explanation. 7

For almost a year, Susan attempted to comply with court orders and DHS services in order to regain custody of her children. But at the July 30, 2007, permanency planning hearing, the court concluded that she appear ed unable to reform . She consistently

6 Before August 2007, none of the notices and orders sent to respondent suggested that his parental rights were at issue. Rather, eac h stated that the goal of the proceedings was to provide temporary foster ca re for the children while Susan particip ated in services aimed at reunifying her with them.

7 The court’s refusal to permit visitation may have violated MCL 712A.13a and MCR 3.965. MCL 712A.13a(11) states that, until a petition for termination is filed, the court must permit “the juvenile’s parent to have frequent parenting time” unless visits, “even if supervised, may be harmful to the juvenile . . . .” MCR 3.965(C)(6 )(a) similarly states: “Unless the court suspends pa renting pursuant to MCL 712A.19b(4) [because a petition to terminate parental rights has been filed] , . . . the court must permit each parent frequent parenting time . . . unless parenting ti me, even if supervised, may be harmful to

the child.”4

relapsed into drug addiction, and the child ren remained withdrawn and reported feeling unsafe with her. Without addressing the children’s ages, 8 the court changed the goal of the proceedings to adoption instead of reunifi cation with Susan. But it gave Susan 30 more days in which to try to prove that she could change her ways.

On August 27, 2007, the DHS petiti oned for termination of Susan’s and respondent’s parental right s under MCL 712A. 19b(3)(g), which permits termination

8 A child’s age affects whether he is likely to be adopted after his parents’ rights are terminated. As of the November 7, 2007, date of termination in this case, respondent’s sons were 9, 11, and 15 years old. Of the total adoptions in Michigan reported from October 1, 2006, to Septembe r 30, 2007, children aged nine and older comprised less than one-third of those adopted (31.48%). State of Michigan Department of Human Services, [Adoption and Foster Care Anal ysis and Reporting System] Adoptions by Federal Age Groups, October 01, 2006 - September 30, 2007, <http://www.michigan.gov/documents/ dhs/AdoptionsByFederalAgeGroupsFY07_243181_7.pdf> (accessed J une 8, 2009). Yet older children represent a higher percentage of those waiting to be adopted after their parents’ rights have been terminated. For example, a DHS report states that, as of September 30, 2008, there was a “backlog” of 4,396 children who remained in foster care although th eir parents’ rights had been terminated before January 1, 2008; of these children, 716 were 5 years old or younger, 925 were 6 to 11 years old, and 2,655 were 12 or older. Michigan Department of Human Services, Recent Developments in Child Welfare, May 4, 20 09 (presentation to the State Court Administrative Office), pp 63-64, 66

< http://courts.michigan.gov/s cao/services/cws/Materials /05-04-09-RDCWL.3.LL.pdf > (accessed June 8, 2009). Nationwide statistics similarly show that, in the fiscal year ending September 30, 2006, 56% of the total number of children in foster care (which includes temporary wards of the state and children awaiting adoption) were aged nine and older, but this age group comprised only 28 % of total adoptions. The AFCARS Report, Preliminary FY 2006 Estimat es as of January 2008, <http://www.acf.hhs.gov/programs/cb/stats_re search/afcars/tar/report14.htm> (accessed June 8, 2009). The relative like lihood that an older child will actually be adopted is significant because it bears on the child’s best interests. Even when statutory grounds for termination are present, under the former vers ion of MCL 712A.19b(5) applicable here a court could terminate a parent’s rights “unless . . . termination . . . [w as] clearly not in the

child’s best interests.” See In re Trejo Minors, 462 Mich 341, 352- 353, 356 (2000) (MCL 712A.19b[5] “preserves to the court the opportunity to find that termination is ‘clearly not in the child’s best interests’ de spite the establishment of one or more grounds for termination”; the court may “consider evidence, within the whole record, that termination is clearly not in a child’s best in terests.”). If adoption is unlikely, a child’s best interests may be better served by conti nuing his relationships with his parents and extended family, particul arly when the ex tended family is willing to take custody of him until the child reaches the ag e of majority.5

when the “parent, without regard to intent, fails to pr ovide 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 cons idering the child’s ag e.” The petition also sought termination of res pondent’s rights under MCL 71 2A.19b(3)(h), which applies

when the

parent is imprisoned for su ch a period that the child will be deprived of a normal home for a period exceeding 2 year s, and the parent has not provided for the child’s proper care and cust ody, and there is no reasonable expectation that the parent will be ab le to provide prope r care and custody

within a reasonable time cons idering the child’s age.

On September 18, 2007, respo ndent was personally served w ith a copy of the petition and

with notice that the termina tion hearing would take place a few weeks later, on October 10, 2007.

At the termination hearing, for the firs t time the DHS and the court arranged for respondent to par ticipate by telephone. 9 He immediately invoked his right to counsel, but the court denied his request. 10 He did not question his wife or the DHS workers who testified during the hearing, bu t testified by telephone on his own behalf, stating in part: “I love my children and I do not want to lose them. And I would love to hopefully have some sort of visiting rights and so would my parents and my other family members.” He

noted that the children had visited him be fore they were placed in foster care.

On November 7, 2007, the court issued an opinion and orde r terminating both parents’ rights to their sons. Susan and resp ondent separately appealed, and the Court of Appeals affirmed in a split, unpublished opinion. 11 Dissenting Judge Gleicher would

9 The court advised respondent that “the only reason we’ve got yo u here by telephone today is because the prosecutor’s secretary th ought that you should be present and set it up.”

10 As the Court of Appeals would later recogn ize, the trial court erred when it concluded that respondent waived his right to counsel by failing to assert the right earlier in the proceedings. A court is obligat ed to inform a respondent pa rent of his right to counsel— and to appoint counsel if n ecessary—“at the respondent’s first court appearance . . . .” MCL 712A.17c(4) and (5) (emphasis added); see also MCR 3.915(B)(1)(a). Therefore, as the Court of Appeals majority concluded, “[ t]o hold that a respo ndent waives his right to counsel by failing to request a court-ap pointed attorney befo re his first court appearance is inconsistent with the pl ain language of MCL 712A.17c(4) and MCR 3.915(B)(1)(a).” In re McBride

, unpublished opinion per curiam of the Court of Appeals, issued July 15, 2008 (Docket Nos. 282062 and 282243), at 3 ( In re McBride I ).

11 In re McBride I

, supra at 1.6

have reversed the order terminating responden t’s parental rights. She opined that the DHS’s and the court’s failures to comply w ith MCR 2.004 and the complete denial of counsel required reversal because respondent ’s procedural and substantive due process rights were violated and, therefore, the c ourt’s resulting order “lack[ed] any inherent integrity . . . .” In re McBride

, unpublished opinion per curiam of the Court of Appeals, issued July 15, 2008 (Docke t No. 282062 and 2822 43), at 11 (Gleicher, J., dissenting) ( In

re McBride I ).

II. Discussion

I agree with Judge Gleicher, respondent, the AG, and respondent’s numerous other

amici curiae that reversal is required. Indeed, reversal is mandated by MCR 2.004(F). Accordingly, although I am also persua ded by respondent’s arguments—which are consistent with Judge Gleicher’s dissent and the AG’s position—that his due process rights were violated, we need not even reach the constitutional question. 12 Further, although MCR 2.004(F) appears to require automatic reversal (as would the apparent constitutional violations), 13 without regard to whether respon dent can show that the errors

12 In the words of my concurring colleagues in In re Rood, 483 Mich 73 (2009)—in which my lead opinion addressed the constituti onal implications of errors committed by

the trial court and the DHS in a termination proceeding—here I am content to squarely conclude that the “numerous statutory and court rule violations” are “sufficiently egregious to require appellate relief.” Id. at 130-131 (Young, J., concurring in part); see

also id. at 125 (Cavanagh, J., concurring in part) ( “[T]he alleged due process violations

arise out of the same state actions that resulte d in statutory violati ons,” and reversal is “clearly compelled by the statutes and court rules . . . .”); id. at 125 (Weaver, J., concurring in part) (reversal is required “both substantively and procedurally on the basis of Michigan law”).

13 The termination order foreclosed respondent’s rights to have any contact with his sons and to contribute to their upbringing. It thereby permanen tly extinguished his constitutionally protected “funda mental liberty interest . . . in the care, custody, and management” of his children. Santosky v Kramer, 455 US 745, 753 (1982). The state must provide “parents with fundamentally fair procedures” in proceedings involving their fundamental parental rights. Id. at 754. Yet here, because of the violation of MCR 2.004 and the improper denial of his request for co unsel, respondent was de prived of the most basic procedural protections available u nder Michigan law to a parent in his circumstances. Accordingly, I am persuade d by Judge Gleicher’s conclusion that the “‘commanding’ liberty interests at stake here, in conjunction with th e statutory and court rule mandates for appointed counsel, are en tirely stripped of mean ing if this Court employs a harmless error analysis.” In re McBride I

, supra at 8 (Gleicher, J., dissenting), quoting and citing Lassiter v Dep’t of Social Services of Durham Co, 452 US 18, 27 (1981) (“A parent’s interest in the accuracy and jus tice of the decision to terminate his or her parental status is . . . a commandi ng one.”). Further, although respondent7

affected the outcome of the pr oceedings, respondent convincingly argues that the errors indeed substantially contributed to the court’ s decision and therefore were not harmless.

A. The parties concede that respondent ’s rights under MCR 2.004 were violated

MCR 2.004 requires the court and the pe titioning party to arra nge for telephonic communication with incarcerated parents wh ose children are the subject of child protective proceedings or termination petitions. 14 Significantly, the express purpose of

convincingly argues that the outcome of the case would have been different if he had participated in the proceedings or had been re presented by counsel, in many cases errors such as those present here will e ffectively prevent a respondent from ever showing that his lack of participation and representation affected the outcome; because no one will have developed a record in su pport of his interests, it may be difficult if not impossible for him to provide an offer of proof to support his clai m that the proceedings might have ended differently. It just so happens in this case that respondent’s sister consistently advocated for ongoing relations hips among the children, their father, and their paternal family and, therefore, the pretermination re cord contains proof th at respondent had an ongoing relationship with his children and that he could potentially provide for their care and custody through his fam ily, as I discuss further infra . On this point, I also note my disagreement with the conclusion of the Court of Appeals that the complete denial of a parent’s statutory right to counsel may be harmless under these circumstances. In re

McBride I

, supra at 3. The majority in that case cited In re Powers Minors

, 244 Mich App 111, 123 (2000), and In re Hall, 188 Mich App 217, 222-223 (1991), but neither of those cases involved the total deprivation of c ounsel or lack of counsel at a termination hearing. Indeed, the court in In re Hall reasoned that, even if the respondent mother had not waived her right to counsel during severa l review hearings, her attorney’s absence from those hearings was harmle ss in part because she was represented by counsel at the termination hearing. In re Hall, supra at 222-223. As the DHS concedes, no Michigan

case has held harmless a total deprivation of counsel, including at the termination hearing.

14 MCR 2.004(A) to (C) provide:

(A) This rule applies to

(1) domestic relations actions involving minor children, and

(2) other actions involving the custody, guardianship, neglect, or foster-care placement of minor children, or the termination of parental rights,

in which a party is incarcerated under the jurisdiction of the Department of

Corrections.

(B) The party seeking an order regarding a minor child shall8

the rule is to engage the incar cerated party by telephone at the outset of the proceeding to

determine

(1) whether the incarcerated party has received adequate notice of the proceedings and has had an opportunity to respond and to participate

,

(2) whether counsel is necessary in matters allowing for the appointment of counsel to assure that the incarcer ated party’s access to the court is protected

,

(3) whether the incarcerated party is capable of self-representation, if that is the party’s choice,

(4) how the incarcerated party can communicate with the court or the

friend of the court during the pendency of the action , and whether the party needs special assistance for such communication, including participation in additional telephone calls, and

(5) the scheduling and nature of fu ture proceedings, to the extent practicable, and the manner in which the incarcerated party may participate. [MCR 2.004(E) (emphasis added).]

(1) contact the department to confirm the incarceration and the incarcerated party’s prison number and location;

(2) serve the incarcerated person with the petition or motion seeking an order regarding the minor child, an d file proof with the cour t that the papers were served; and

(3) file with the court the petition or motion seeking an or der regarding the minor child, stating that a party is incarcerated and providing the party’s prison number and location; the captio n of the petition or motion shall state that a telephonic hearing is required by this rule.

(C) When all the requirements of subr ule (B) have been accomplished to the court’s satisfaction, the court shall i ssue an order requesting the department, or the facility where the party is located if it is not a department facility, to allow that party to participate with the court or its designee by way of a

noncollect and unmonitore d telephone call in a hearing or conference, including a friend of the court adjudica tive hearing or meeting. The order

shall include the date and time for the hearing, and the pr isoner’s name and prison identification number, and shall be served by the court upon the parties and the warden or supervisor of the facility where the incarcerated party resides.9

The AG observes that the enumer ated purposes of the rule are consistent with traditional due process concepts of notice and opportunity to be heard. 15

B. The remedy for violati on of MCR 2.004 is reversal

With regard to a remedy for violation of MCR 2.004, MCR 2.004(F) explicitly provides: “A court may not grant the relief requested by the moving party concerning the

minor child if the incarcerated party has not been offered the opportun ity to participate in the proceedings , as described in this rule.” 16 (Emphasis added.) I agree with respondent and the AG that th e plain language of subrule F, combined with the rule’s overall purposes, defies typical harmless e rror review. MCR 2.00 4(F) affirmatively prohibits the trial court from taking action when the rule has been violated. And the rule would be effectively meaningless if its enfor cement depended on an imprisoned parent’s ability to show, in hindsight, th at his participation would have affected the outcome of the proceeding. Such a requirement would rewrite the rule to re quire parental participation only upon proof that the pare nt likely could achieve an ou tcome in his favor; such a notion negates a parent’s right to participate in proceedi ngs involving his children and turns due process on its ear.

MCR 2.004(F) clearly requires reversal he re. Neither the DHS nor the court ever fulfilled its respective duty to arrange for re spondent’s participation. And because respondent did not have an attorney to represent him, no one familiar with the law appeared on his behalf to ensu re that the rule was enforced. The enumerated purposes of the rule were never fulfilled and, as a result, respondent was totally deprived of the ability

15 See Dow v Michigan, 396 Mich 192, 205 (1976) (“The fundamental requisite of due process of law is the opportunity to be heard. The hearing must be at a meaningful time and in a meaningful manner. The opportunity to be heard includes the right to notice of that opportunity.”) (quotation marks and citations omitted).

16 MCR 2.004(F) does not apply, even if the court or petiti oning party failed to comply with a provision of MCR 2.004, under two circumstances: “if the incarcerated party actually does participate in a telephone call, or if the court determines that immediate action is necessary on a temporary basis to pr otect the minor child.” The latter exception arguably applied to the September 14, 2006, preliminary hearing be cause Susan had been jailed and the children were staying with their maternal grandmother, who the court concluded was not an appropriate custodian. Otherwise, the DHS generally concedes that MCR 2.004 was violated, and it does not argue that respondent’s belated participation by telephone at the termination hearing was suffic ient to satisfy the first exception to MCR 2.004(F). Indeed, by the time th e termination hearing took place, the proceedings were effectively over; respondent’s unrepresented telephonic participation at that time did not satisfy any of the purposes of the rule.10

to participate in the proceedings. 17 Accordingly, the court was prohibited from granting the DHS’s petition for terminati on. I would reverse on the basis of MCR 2.004(F) alone.

C. The errors were not harmless

Finally, even if it were incumbent upon re spondent to show th at violation of MCR 2.004 actually affected the outcome of the pr oceedings, he persuasively argues that the error was not harmless. First, the error clearly qualifies for reversal under MCR 2.613(A), the harmless error rule. MCR 2. 613(A), which generally applies to civil proceedings—including child protective proceedings, see M CR 3.902(A)—provides:

An error in the admissi on or the exclusion of ev idence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, mo difying, or otherwise disturbing a judgment or order, unless refusal to ta ke this action appears to the court

inconsistent with subs tantial justice.

17 Respondent also reasonabl y observes that, although termination of his parental rights was not initially at issue, his lack of oppor tunity to participate from the outset of the proceedings directly affected his constitutionally pr otected fundamental right as a parent to participate in decisions concerni ng his children’s care and custody. Santosky, supra at 753. His lack of opportunity to particip ate also had broader ramifications for child welfare in Michigan. For exam ple, Michigan is at risk of losing significant federal funding under subchapter IV, part E, of th e United States Social Security Act, 42 USC

670 et seq. —commonly called “Title IV-E” funding—as a re sult of failures to involve

both parents in a child’s case planning process throughout the proceedings. Indeed, to avoid funding losses after the United States Department of Health and Human Services Child and Family Services revi ew (CFSR) and Title IV-E re view of Michigan court and DHS procedures, in 2004 the DHS esta blished a Program Improvement Plan—or “PIP”—aimed at remedying our state’s failures to engage fathers and seek out relatives in child protective proceedings. PIP General Information , pp 26, 28, 32 <http://www.michigan.gov/documents/ FIA-CFS-PIP-Narra tive_106409_7.pdf> (accessed June 8, 2009) (CFSR review revealed failures “to conduct a thorough search or evaluation of relatives as potential placement resources or relatives had requested to be considered for placement and th e agency failed to follow up,” “[p]articular concern was expressed over the lack of consistent efforts to locate and involve fathers,” and “[f]athers were not engaged in the case planning pr ocess even when thei r whereabouts were known.”). See also national expert Judge Leonard Edward s (retired) on the consequences, including funding losses, of stat es’ failures to engage fathers in child protective proceedings. Edwards, Engaging Fathers in the Child Protection Process: The Judicial Role (Part 1) , in American Bar Association: Child Law Practice, vol 28, no 1, pp 1, 6-10 (March 2009).11

The court’s decision to te rminate respondent’s constitu tional parental rights after depriving him of the most basic procedural protections throughout the proceedings was certainly “inconsistent with s ubstantial justice.” Second, re spondent has shown that his substantial rights were affected and that , absent the errors, the outcome of the proceedings likely would have been different. 18

Respondent cites the DHS’s statutory dutie s in child protective proceedings to “identify, locate, and consult with relativ es to determine placement with a fit and appropriate relative who would meet the child’s developmental, emo tional, and physical needs as an alternative to foster care,” to subsequently “[m]ake a placement decision and document in writing the reason for the decision,” and to “[p] rovide written notice of the decision and the reasons for the placement decision” to those involved including the “father” and “each relative who expresses an inte rest in caring for the child . . . .” MCL 722.954a(2). 19 Respondent makes a strong argumen t that placement with a paternal

18 Respondent reasonably argues that the e rrors were of constitutional dimension and were preserved because he properly requested counse l—who could have moved inter alia for relief based on the ongoing violation MCR 2.004—at the term ination hearing. Accordingly, he argues that the error must be reviewed for whether it was harmless beyond a reasonable doubt. People v Carines, 460 Mich 750, 774 (1999). But even if we assume that the violation of MCR 2.004 co nstituted a nonconstitutio nal error, respondent has shown that the error “more probabl[ y] than not” affected the outcome. Id. , citing People v Lukity, 460 Mich 484 (1999). Indeed, even u nder the plain error standard for unpreserved errors, I am convinced that the violation of MCR 2.004 affected his substantial rights and “seriously affected the fairness, inte grity, or public reputation of judicial proceedings.” Carines, supra at 774.

19 Michigan and federal law favor placement with relatives throughout child protective proceedings. MCL 712A.13a(10) (“[T]he court shall order th e juvenile placed in the most family-like setting available consistent with the juvenile’s needs.”); MCR 3.965(E) (providing that at the prelim inary hearing, the court “shall direct” the DHS to identify and consult with relatives pursuant to MCL 72 2.954a[2]); MCR 3.965(B)(13) (“The court must inquire of the parent . . . regarding the identity of relativ es of the child who might be available to provide care.”); 42 USC 671(19) (providing that states receiving funding under subchapter IV, part E, of the Unite d States Social Secu rity Act, 42 USC 670 et

seq., must “consider giving prefer ence to an adult relative ov er a non-related caregiver when determining a placement for a child, provi ded that the relative caregiver meets all relevant State child protection standards[.]” ). Indeed, after this case was decided the Legislature enacted new statutes aimed at encouraging and fund ing guardianships, including those by relatives. Se e, e.g., MCL 712A.19a(7) thr ough (15). In particular, a parent may now explicitly avoid termination of his rights, a lthough statutory grounds for termination are present, if the child is being cared for by relatives or if adoption is not an appropriate permanency goal. MCL 712A.19a(6)(a) and (b)( i ).12

relative—particularly his sister, Kelly—would have been very likely if the correct procedures had been followed. Indeed, the trial court clearl y erred when it stated, in its November 7, 2007, opinion, th at “[f]amily members were unwi lling to step in after the mother’s long period of addiction.” To th e contrary, Kelly requested custody, was in contact with the DHS and the court throughout the proceedings, and indeed appeared at the termination hearing along with respondent’s mother. Nothing in the record suggests that the court or the DHS considered placem ent with Kelly or other paternal relatives

after the court determined that reunif ication with Susan was inappropriate.

Further, the DHS and the Court of Appeal s majority incorrec tly assumed that

termination was inevitable under MCL 7 12A.19b(3)(h). That statute does not automatically authorize terminat ion merely because a parent will be imprison ed for more than two years. Rather, the st atute permits termination if the

parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody , and there is no reasonable expectation that the parent will be ab le to provide prope r care and custody within a reasonable time considering th e child’s age. [M CL 712A.19b(3)(h) (emphasis added).]

The statute’s use of the word “and” clearly permits a parent to pr ovide for the child’s proper care and custody although he is in prison; he need not personally care for the

children. 20 Thus, respondent reas onably argues that the facts underlying the DHS’s

20 Michigan precedent supports the notion that a parent ma y achieve proper care and custody through placemen t with a relative. In re Taurus F, 415 Mich 512, 535 (1982) (Williams, J.) (equally divided opi nion) (“[I]f a mother gives cu stody to a sister, that can be ‘proper custody’”.); In re Weldon

, 397 Mich 225, 296 (1976) (Levin, J.) (“Some parents, . . . because of illness, incarcera tion, employment or othe r reason, entrust the

care of their children for extend ed periods of time to others. This they may do without interference by the state as long as the child is adequately cared for.”), overruled in part Bowie v Arder, 441 Mich 23, 43 (1992); In re Curry, 113 Mich App 821 , 823-826 (1982) (incarcerated parents may achieve proper cu stody by placing a ch ild with relatives); In re Ward, 104 Mich App 354, 360 (1981 ) (holding that a child “who was placed by her

natural mother in the custody of a relative who properly cared for her, is not a minor ‘otherwise without proper cust ody or guardianship’ and thus she was not subject to the jurisdiction of the probate court” under MCL 712A.2). Michigan’s Estates and Protected

Individuals Code includes an extensive statut ory scheme designed to establish guardians for minors—including guardians who are relatives—by appointment of the court or by appointment of th e minor’s parents . MCL 700.5201 et seq.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 23, 2009

0616 13

termination petition against him would have been ne gated—or would not have arisen in the first place—if respondent ha d participated earlier in th e proceedings or had been represented by counsel; he or his attorney co uld have argued for placement with Kelly or another paternal relative. If such a place ment had succeeded, termination would have been inappropriate, and respondent and his ch ildren would have been able to continue their relationship.

III. Conclusion

For each of these reasons, I would reve rse the order terminating respondent’s parental rights and remand for further proceedi ngs in the trial court. I would direct the trial court to appoint counsel for responde nt and to fully cons ider placement with relatives and guardianship options, particularly with Kelly McBride.

K ELLY , C.J., joins the statement of C ORRIGAN , J.