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Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED MAY 20, 2003
 

In re JK, Minor.
 

FAMILY INDEPENDENCE AGENCY,
 

Petitioner-Appellee,
 

v No. 121410
 

MELISSA KUCHARSKI,
 

Respondent-Appellant.
 

PER CURIAM
 

A judge in the Family Division of the Kent Circuit Court
 

terminated the respondent mother’s parental rights to her
 

three-year-old son after concluding that there were attachment
 

and bonding problems between the respondent and the child.
 

Following an unsuccessful appeal to the Court of Appeals,
 

respondent filed a timely application for leave to appeal in
 

this Court. While that application was pending, unknown to
 

this Court, the family division of the circuit court engaged
 
in the apparently unprecedented and extraordinary action of
 

allowing the foster parents to adopt the child.1 Again,
 

unaware of this adoption, we remanded for additional findings.
 

Because we find the evidence supporting termination to be
 

insufficient, we vacate the order terminating the respondent’s
 

parental rights.2 We also take this opportunity to make clear
 

what we believe to be obvious, that the circuit court is not
 

permitted to proceed with an adoption following a termination
 

of parental rights where the parent’s appeal of that decision
 

remains pending. 


I. FACTS AND PROCEEDINGS
 

In April 1999, the Kent Circuit Court, Family Division,
 

assumed temporary jurisdiction over the minor child on the
 

basis of the respondent’s admitted marijuana use. The child,
 

who was then sixteen months old, was placed in a foster home
 

by Catholic Social Services3 while the respondent entered an
 

in-patient substance-abuse treatment program. For the first
 

ten months of the child’s wardship, Catholic Social Services
 

1 None of the members of this majority can recall having


ever encountered this situation, in which an adoption order


entered while a timely appeal was pending in a parentalrights-termination case.
 

2 The trial court also terminated the parental rights of


the father, Travis Englehart. He did not appeal.
 

3 Catholic Social Services provided foster care for court


wards on the basis of a contract with the Kent County Family


Independence Agency.
 

2
 
planned to return the child to the respondent. Visits between
 

the respondent and the child went well, and the respondent
 

actively interacted with the child. Initially, the visits
 

were weekly, but later were increased to twice weekly. The
 

child was sufficiently bonded to the respondent that he cried
 

when forced to leave her.4
 

Catholic Social Services subsequently placed the
 

respondent in the same foster home. The foster parents
 

reported that the respondent did a good job with the child and
 

attended to most of his needs.
 

In June 2000, Catholic Social Services filed a petition5
 

to terminate the respondent’s parental rights on the basis of
 

allegations that the conditions that led to the adjudication
 

continued to exist and there was no reasonable expectation
 

that the respondent would rectify the conditions within a
 

4
 At the July 1999 review hearing, the social worker,


Lora Holewinski, opined that the respondent did not require


parenting classes or a psychological examination. She praised


the respondent for her attentiveness to the child during the


visits, and her only negative comment was about the
 

respondent’s initial defiance in the substance-abuse program,


which had subsided by the time of the July 1999 hearing.
 

5
 A permanent-custody petition was filed earlier, in


April 2000. However, the allegations in that petition refer


to the respondent’s mother, rather than the respondent. The


respondent’s mother was also the subject of neglect


proceedings.
 

3
 
reasonable time given the child’s age.6 As a factual basis
 

for the allegation against the respondent, Catholic Social
 

Services alleged that the respondent failed to submit to a
 

required psychological evaluation, failed to adequately
 

participate in counseling at the Dakotah Family Treatment
 

Center and Aftercare Process Program,7 and was continuing to
 

use alcohol and marijuana. The petition also alleged that the
 

respondent was inattentive and acted inappropriately during
 

agency visits with the child.
 

Catholic Social Services had referred the respondent to
 

therapist Elaine Hoogeboom for weekly substance-abuse
 

therapy.8

 In November 2000, Catholic Social Services, for the
 

first time, expressed specific concern with the respondent’s
 

bonding and attachment to the child. The social worker asked
 

the respondent’s therapist to address the newly raised concern
 

in weekly therapy with the respondent. Hoogeboom began
 

meeting weekly with the respondent, her boyfriend, and the
 

child to address the bonding and attachment issue. Several of
 

6 This is a ground justifying permanent custody pursuant


to MCL 712A.19b(3)(c)(i).
 

7 However, at the October 1999 statutory review hearing,


the social worker testified that the respondent had completed


the in-patient portion of the program, but did not “graduate”


because the weekend before the “graduation” she had violated


one of the personal-conduct rules of the program.
 

8
 The respondent began meeting with Hoogeboom weekly in


July 2000.
 

4
 
the sessions involved only the respondent and her boyfriend
 

because the foster mother failed to bring the child. Less
 

than one month after the bonding and attachment therapy began,
 

Ywania Richardson, a therapist who practiced in Genesee
 

County, conducted a bonding and attachment assessment of the
 

respondent and her child. She observed their interaction for
 

less than one hour.
 

The permanent-custody trial took two days in early 2001.
 

At the beginning of the trial, the parties stipulated that
 

only legally admissible evidence could be used to establish
 

the bonding and attachment issue. That constituted an
 

acknowledgment by all parties that the bonding and attachment
 

issue was not a basis supporting temporary jurisdiction. MCR
 

5.974(E)(1). At the trial, the social worker admitted that
 

the respondent completed the substance-abuse program and an
 

independent-living program. She was employed,9 had secured
 

housing,10 and was able to care for herself. Her previous
 

substance abuse was no longer a problem and she had remained
 

9 The respondent’s independent-living supervisor, Alejita


Rodriguez, testified that respondent earned $1,400 a month.
 

10
 At the time of the permanent-custody trial, the


respondent was living in a two-bedroom apartment, which she


procured on her own. It was appropriately furnished and


contained clothes and toys for the child.
 

5
 
free of controlled substances for over one year.11 Although
 

the respondent did not initially follow through with a
 

psychological evaluation when first referred 11⁄2 years earlier,
 

she did follow through with the second referral in August
 

1999.12 The psychologist who conducted the evaluation found
 

nothing in her intellectual and psychological profiles that
 

prevented her from appropriately parenting the child.
 

The social worker’s new concern about the respondent’s
 

ability to parent related to her alleged lack of attachment
 

and bonding with the child. She testified that the respondent
 

did not interact appropriately with the child during visits.
 

According to the worker, the respondent sometimes had
 

difficulty engaging the child in activities, sometimes seemed
 

lethargic during portions of the visits, and sometimes
 

inappropriately brought candy to visits scheduled in the
 

morning. 


Hoogeboom, the respondent’s therapist, opined that the
 

respondent and the child were bonded. She recommended that
 

the child be placed with the respondent. According to
 

Hoogeboom, the respondent appropriately disciplined the child
 

11
 Despite this recognition that the respondent had


remained substance-free for over a year, the June 2000


permanent-custody petition erroneously alleged that the
 

respondent continued to use alcohol and drugs.
 

12
 The respondent completed the two-part evaluation in


August 2000 after missing a December 1999 appointment.
 

6
 
and interacted with him by playing and singing with him.
 

Ywania Richardson, a therapist contacted by the foster
 

mother and paid by Catholic Social Services for the
 

respondent’s assessment, also testified at trial about the
 

bonding and attachment issue.13 Richardson met with the
 

respondent and the child on one occasion for approximately one
 

hour to evaluate their bonding. On the basis of this single
 

meeting, which took place less than one month after Hoogeboom
 

began addressing the bonding and attachment issue with the
 

respondent, Richardson opined that they did not have a wellattached, bonding relationship, but explained that this may
 

have resulted from the fact that the child had been in a
 

number of foster homes.14
 

At the conclusion of the permanent-custody trial, the
 

trial court terminated the respondent’s parental rights,
 

despite recognizing that the respondent had made significant
 

improvement. The respondent was drug-free, had graduated from
 

high school, had completed an independent-living course, and
 

obtained adequate housing and employment.
 

Nonetheless, the trial court held that the respondent’s
 

lack of bonding with, and attachment to, the child provided a
 

13
 Catholic Social Services referred the respondent to


Richardson after the referral to Hoogeboom.
 

14
 The child had resided in five different foster homes
 

during wardship.
 

7
 
basis for termination. To reach this conclusion, the court
 

gave greater weight to Holewinski’s and Richardson’s
 

testimony. The court discounted Hoogeboom’s testimony because
 

Hoogeboom did not specialize in treatment of the bonding and
 

attachment issue. 


The respondent appealed by right to the Court of Appeals,
 

which affirmed.15 The respondent’s counsel filed a timely
 

application for leave to appeal with this Court and filed a
 

copy with the trial court the following day. Despite this,
 

and just two weeks after the respondent filed the application
 

and before this Court ruled on it (even before the date on the
 

notice of hearing in this Court), the trial court entered an
 

order making final the adoption of the child by the foster
 

parents.16
 

This Court initially denied leave to appeal in October
 

2002. The respondent subsequently filed a motion for
 

reconsideration, which we granted.
 

II. STANDARD OF REVIEW
 

We review for clear error both the trial court’s decision
 

that a ground for termination of parental rights has been
 

15
 Unpublished memorandum opinion, issued March 1, 2002


(Docket No. 235602).
 

16 This Court was informed of the adoption after a remand


to the trial court in August 2002 for updated findings of


fact. The trial court filed its findings later that month. 


8
 
proved by clear and convincing evidence and, where
 

appropriate, the court’s decision regarding the child’s best
 

interests. MCR 5.974(I);17 In re Trejo Minors, 462 Mich 341,
 

356-357; 612 NW2d 407 (2000). A circuit court’s decision to
 

terminate parental rights is clearly erroneous if, although
 

there is evidence to support it, the reviewing court on the
 

entire evidence is left with the definite and firm conviction
 

that a mistake has been made. In re Miller, 433 Mich 331,
 

337; 445 NW2d 161 (1989). 


III. ANALYSIS
 

Parents have a significant interest in the companionship,
 

care, custody, and management of their children, and the
 

interest is an element of liberty protected by due process.
 

In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993). A dueprocess violation occurs when a state-required breakup of a
 

natural family is founded solely on a “best interests”
 

analysis that is not supported by the requisite proof of
 

parental unfitness. Quilloin v Walcott, 434 US 246, 255; 98
 

S Ct 549; 54 L Ed 2d 511 (1978).
 

A
 

The Legislature has enumerated specific conditions, one
 

17
 The rules governing proceedings regarding juveniles


were amended and moved to new MCR subchapter 3.900, effective


May 1, 2003. The provisions on termination of parental rights


are now found in MCR 3.977. In this opinion, we will refer to


the rules in effect at the time of the lower-court decisions.
 

9
 
or more of which must be proved before a court is permitted to
 

terminate a parent’s rights to her child. MCL 712A.19b(3).
 

The petitioner bears the burden of establishing the existence
 

of at least one of those grounds by clear and convincing
 

evidence. Id.; Trejo, supra at 350. The circuit court in
 

this case relied on the following enumerated grounds to
 

terminate the respondent’s parental rights to her son:
 

(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:
 

* * *
 

(ii) Other conditions exist that cause the


child to come within the court’s jurisdiction, the


parent has received recommendations to rectify


those conditions, the conditions have not been


rectified by the parent after the parent has


received notice and a hearing and has been given a


reasonable opportunity to rectify the conditions,


and there is no reasonable likelihood that the
 

conditions will be rectified within a reasonable
 

time considering the child’s age.
 

* * *
 

(g) 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


child's age. [MCL 712A.19b(3).]
 

If the petitioner establishes a statutory ground for
 

termination, “the trial court must issue an order terminating
 

parental rights unless there exists clear evidence, on the
 

10
 
whole record, that termination is not in the child’s best
 

interests.” Trejo, supra at 354; MCL 712A.19b(5).
 

“Subsection 19b(5) attempts to strike the difficult balance
 

between the policy favoring the preservation of the family
 

unit and that of protecting a child’s right and need for
 

security and permanency.” Trejo, supra at 354.
 

The decision to terminate the respondent’s parental
 

rights was clearly erroneous. Pursuant to MCL 712A.19b(3)
 

(c)(ii), termination of parental rights is justified where (1)
 

the parent is the respondent in a child-neglect proceeding,
 

(2) other conditions exist that cause the child to come within
 

the court’s jurisdiction, (3) the parent received
 

recommendations to rectify those conditions and had a
 

reasonable opportunity to do so and the respondent failed to
 

rectify the other conditions, and (4) there is no reasonable
 

likelihood she will do so within a reasonable time given the
 

age of the child. The “other conditions” upon which the
 

trial court relied were the lack of a bond or attachment
 

between the mother and the child. However, we hold that the
 

petitioner did not establish the lack of such a bond or
 

attachment by clear and convincing evidence. 


The respondent’s therapist met with her weekly. After
 

ample opportunity to observe the respondent and the child
 

interact, she opined that they were adequately bonded. She
 

11
 
recommended that the child be returned to the respondent’s
 

care. The respondent’s supervisor in the independent-living
 

program also found the respondent’s interaction with the child
 

to be appropriate. The psychologist who conducted the
 

respondent’s court-ordered evaluation found nothing in her
 

psychological makeup that prevented her from appropriately
 

parenting her child. By contrast, the therapist hired by
 

Catholic Social Services met with the child and the respondent
 

only once for approximately one hour. Her observation of the
 

respondent and the child occurred less than one month after
 

the respondent’s therapist began addressing the bonding and
 

attachment issue. Reliance on this one minimally informed
 

source rather than on the fully knowledgeable staff of persons
 

who had worked directly with the respondent over an extended
 

period was an insufficient basis for severing the parental
 

bond between mother and son. 


In concluding that the respondent and her child were not
 

properly bonded, the trial court ignored the fact that,
 

immediately after the agency filed the petition for
 

termination of parental rights, visitation was automatically
 

suspended for several months pursuant to MCL 712A.19b(4). The
 

counselor was then notified only two months before trial18 to
 

18 The social worker first asked the counselor to address
 

the bonding and attachment issue in November 2000. The trial
 

began in January 2001.
 

12
 
address the bonding and attachment issue with the respondent.
 

Any suggestion that the respondent was given “a reasonable
 

opportunity” to rectify the alleged bonding and attachment
 

issue is unwarranted.
 

By discounting the testimony of Hoogeboom, the
 

respondent’s counselor, the trial court also ignored the fact
 

that it was the social worker who referred the respondent to
 

Hoogeboom for counseling on the bonding and attachment issue.
 

If the social worker truly believed that Hoogeboom’s
 

credentials were insufficient to address bonding and
 

attachment, it was that worker’s responsibility to make an
 

alternate referral. Despite Richardson’s alleged superior
 

credentials, the social worker never suggested that the
 

respondent receive treatment from her.
 

The fundamental right of a parent and child to maintain
 

the family relationship can be overcome only by clear and
 

convincing evidence, which, in this case, was not supplied by
 

this single witness who observed the mother and child together
 

for just one hour at a time when she had been addressing the
 

bonding and attachment issue in therapy for less than one
 

month.19
 

19 The social worker’s testimony also failed to establish


clear and convincing evidence that the respondent failed to


address her bonding and attachment issue. Rather, the social


worker’s testimony about the respondent’s occasional lethargy


and bringing candy to morning visits does not, in our
 

13
 
 

The second basis for the trial court’s order is MCL
 

712A.19b(3)(g), which permits termination where (1) the parent
 

fails to provide proper care or custody for the child and (2)
 

there is no reasonable expectation that the parent will be
 

able to do so within a reasonable time given the child’s age.
 

Again, petitioner failed to present clear and convincing
 

evidence of this ground. The social worker from Catholic
 

Social Services acknowledged that the mother had appropriate
 

housing and employment, was able to care for herself, had
 

completed an independent-living program, and remained drugfree for over one year. The respondent in this case fulfilled
 

every requirement of the parent-agency agreement. Her
 

compliance negated any statutory basis for termination.
 

This Court has held that a parent’s failure to comply
 

with the parent-agency agreement is evidence of a parent’s
 

failure to provide proper care and custody for the child.
 

Trejo, supra at 360-363. By the same token, the parent’s
 

compliance with the parent-agency agreement is evidence of her
 

ability to provide proper care and custody.20
 

judgment, rise to the level of clear and convincing evidence


required to permanently sever the bond between a parent and


her child.
 

20
 If the agency has drafted an agreement with terms so


vague that the parent remains “unfit,” even on successful


completion, then the agreement’s inadequacies are properly


attributable to the agency and cannot form the basis for the


termination of parental rights. Even if, in some case, it can
 

14
 
There were no statutory grounds for terminating the
 

respondent’s parental rights pursuant to MCL 712A.19b(3).21
 

For that reason, we need not address the question whether
 

termination was in the best interests of the child. MCL
 

712A.19b(5). We conclude that the trial court “clearly erred”
 

by terminating respondent’s parental rights.22
 

be conceived that satisfaction by the parent of the parentagency agreement does not render the parent “fit,” in this


case we are satisfied that the respondent’s satisfaction of


the agreement did evidence that she was no longer an “unfit”


parent.
 

21 Several of the trial court’s written findings of fact


on remand suggest that it may have been influenced by the


relative advantages of the adoptive home compared to the


mother’s home. We remind the family-division judges of what


we said nearly fifty years ago:
 

“It is totally inappropriate to weigh the


advantages of a foster home against the home of the


natural and legal parents. Their fitness as
 

parents and question of neglect of their children


must be measured by statutory standards without


reference to any particular alternative home which


may be offered to the [child].” [Fritts v Krugh,


354 Mich 97, 115; 92 NW2d 604 (1958).]
 

We note the trial court’s fact-finding on remand simply


because it suggests that improper comparisons between the


homes of the adoptive and natural parents may have been made


in determining whether to terminate the respondent’s parental


rights. This type of comparison may explain why the


respondent’s parental rights were terminated despite what we


believe is the lack of clear and convincing evidence in


support of that termination. 


22
 Despite the lack of evidence supporting the petition


for termination of the respondent’s parental rights, the trial


court terminated her rights and refused to return the child.


Consequently, the child was deprived of a secure and stable


home with his natural mother, a mother who had completed every
 

15
 
B
 

A parent whose rights to her child have been terminated
 

has the right to appeal that decision. Reist v Bay Circuit
 

Judge, 396 Mich 326; 241 NW2d 55 (1976).23 MCR 5.993(A)(2)
 

provides an appeal of right in the Court of Appeals for an
 

order terminating parental rights. The Adoption Code
 

prohibits a trial court from ordering an adoption if a parent
 

has filed an appeal of right from an order terminating her
 

parental rights until the Court of Appeals affirms the order
 

terminating parental rights. MCL 710.56(2).24
 

term of her parent-agency agreement and who had, according to


her own court-ordered therapist, successfully addressed her


alleged lack of bonding with, and attachment to, her child.


Rather than returning the child after the natural mother


completed every task asked of her, the agency delayed the


child’s security and stability with his own mother and sought


the opinion of a different therapist who claimed that the


respondent lacked the proper bonding and attachment to


properly parent her child.
 

23
 In Reist, all the participating justices agreed that


parents have the right to appeal. The Court divided on the
 

basis for that right. Justices Levin, Kavanagh, and Williams


found that parents have a constitutional right to appeal.


Justices Coleman, Fitzgerald, and Lindemer, on the other hand,


found no need to address whether parents had a constitutional


right to appeal, as they found a basis for the appeal in the


relevant statute and court rule. 


24
 We acknowledge the accelerated pace at which circuit


courts in this state are now required to determine whether to


terminate the parental rights of a parent in a neglect


proceeding. MCL 712A.19a(1) requires a circuit court to hold


a permanency-planning hearing within one year after the child


is made a court ward. The federal adoption and safe families


act, 42 USC 675(5)(E), requires the filing of a petition for


permanent custody when a child has remained a family court
 

16
 
While the statute refers to affirmance by the Court of
 

Appeals, it must be read in conjunction with MCR 7.215(F),
 

which establishes the effective date of a Court of Appeals
 

opinion:
 

(1) Routine Issuance. Unless otherwise ordered
 

by the Court of Appeals or the Supreme Court or as


otherwise provided by these rules,
 

(a) the Court of Appeals judgment is effective


after the expiration of the time for filing a timely


application for leave to appeal to the Supreme


Court, or, if such an application is filed, after


the disposition of the case by the Supreme Court


. . . .
 

In this case, the respondent filed a timely application
 

for leave to appeal to this Court within twenty-one days after
 

the date of the judgment of the Court of Appeals. MCR
 

7.302(C)(2). Thus, the trial court improperly allowed the
 

foster parents to adopt the child before the resolution of the
 

respondent’s application for leave to appeal.25 The judgment
 

ward for fifteen of the previous twenty-two months unless (i)


the child is being cared for by a relative, (ii) a state


agency has documented in a case plan a compelling reason for


finding that filing such a petition would not be in the best


interests of the child, or (iii) the state has not provided to


the child’s family such services as the state deems necessary


for the safe return of the child. In this case, the state did


not provide the respondent with the proper services necessary


for the safe return. The state agency referred the mother to


a therapist to deal with the bonding and attachment issue; the


therapist’s opinion (that the respondent had no problem in


this area) was later discounted.
 

25
 At oral argument it was reported that the county


designated this as an “at risk” adoption. Apparently, this


adoption was labeled that because the county took a “risk”
 

17
 
of the Court of Appeals never became effective. 


The trial court was without authority to ignore this
 

Court’s appellate jurisdiction by allowing the adoption to
 

take place while a timely application for leave to appeal was
 

pending in this Court. The adoption in this case was invalid
 

because it violated the provisions of MCL 710.56(2) and MCR
 

7.215(F). Further, to allow such an adoption to occur would
 

be to distort the nature of this Court’s review of the
 

termination decision by requiring, as an effective
 

precondition to reversal of the termination order of the trial
 

court, that we be prepared also to undo an adoption that has
 

become a fait accompli. Parents whose rights have been
 

terminated by the trial court are entitled to appellate review
 

of this decision without that review being compromised by the
 

specter of appellate courts having to undo an adoption as a
 

concomitant act to the granting of relief for those parents.
 

Such a result is simply contrary to the structure of the
 

justice system established by our constitution and laws. 


The members of this Court have each reflected upon this
 

case at length. There is no ideal result. There is no
 

outcome that will avoid the imposition of suffering upon
 

that this Court might vacate the termination of parental


rights. We explicitly disapprove of this practice. Such an
 

“at risk” adoption does a disservice to all the parties


involved.
 

18
 
either the birth parent of this child or his present adoptive
 

parents. If there is a practical reason that adoptions not be
 

permitted while a parent is in the process of appealing a
 

termination decision, it is that reflected in the choices now
 

available to this Court in this case. It is in the interests
 

of both the natural parent and the child, as well as the
 

interests of the integrity of the justice system, that the
 

termination decision not be reviewed, as it has been here,
 

under the specter of having to remove the child from adoptive
 

parents in order to give faithful effect to the law. To say
 

the least, this Court has not taken this decision lightly.26
 

Rather, we are fully cognizant that it is an imperfect
 

decision and that it will have a significant effect on the
 

lives of everyone connected with this case.27 We conclude,
 

26 The premature adoption that occurred in this case was
 

a procedural anomaly, leading the Court to proceed with


caution. We remanded this case for an update on the status


and granted the respondent’s motion for reconsideration after


additional consideration. The deliberative process required


in this unusual case caused this Court to expend a greater


length of time than is usually necessary in appeals of


decisions regarding the termination of parental rights. 


27
 Although appeals from decisions terminating parental


rights are already decided on an expedited basis, MCR


5.993(C)(1), 7.212(A)(1)(i), and 7.212(A)(2)(a)(i),


significant efforts have been ongoing in this Court to further


expedite this process. This Court previously opened an


administrative file to address appellate delay and, in April


2002, we published for comment proposed rules that would


eliminate delayed applications for leave to appeal to the


Supreme Court, effectively reducing the delay between the


rendering of a decision by the Court of Appeals and filing of
 

19
 
however, that the result reached is compelled by Michigan law
 

and that the values underlying this law are important in
 

upholding the family relationship.
 

In order to prevent this situation from recurring, we
 

hold that trial courts are not permitted to allow an adoption
 

of a child whose parents’ rights have been terminated while
 

the parents’ appeal of that termination is pending in either
 

the Court of Appeals or in this Court.28
 

an application for leave to appeal in this Court. Those
 

proposals will soon be ready for final action upon the receipt


of related proposals from the Court of Appeals, with which


they must be coordinated. In addition, this Court’s internal


administrative processing of cases has been modified to assure


the earliest possible Supreme Court consideration of these


cases. Further, in response to concerns about delay in the


Court of Appeals and a study from the National Center for


State Courts regarding dependency appeals, in August 2002, we


directed the Chief Judge and the Chief Clerk of the Court of


Appeals to convene a Dependency Appeals Task Force, including


representatives of affected courts and groups, to devise


methods for expediting dependency appeals. The task force’s
 

report was filed May 5, 2003.
 

As an offshoot of the task force on appellate-delay


reduction, discussions have also been initiated regarding the


need to address reducing trial-court delay in handling


termination cases. In response to the federal government’s


Child and Family Service Review of the Michigan foster-care


and adoption system, a work group comprised of family-division


judges and employees of the Family Independence Agency has


been appointed to address such delay.
 

28
 MCL 712A.19c requires the trial court to hold a


posttermination review hearing, within ninety-one days of the


termination decision and at least every ninety-one days


thereafter. At these mandatory posttermination review
 

hearings, the court can monitor the progress of the parent’s


appeal and ensure that an adoption does not take place until


the parent’s right to appellate review has been exhausted.
 

20
 
IV. CONCLUSION
 

We reverse the judgments of the Court of Appeals and the
 

Kent Circuit Court terminating the respondent’s parental
 

rights. Further, we vacate the order of adoption because it
 

is invalid. Finally, we order the Family Independence Agency
 

to commence appropriate efforts toward reunification of the
 

respondent and the child. 


Maura D. Corrigan


Michael F. Cavanagh


Marilyn Kelly


Clifford W. Taylor


Robert P. Young, Jr.


Stephen J. Markman
 

21
 
 

 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

In re JK, Minor.
 

FAMILY INDEPENDENCE AGENCY, 


Petitioner-Appellee,
 

v No. 121410
 

MELISSA KUCHARSKI,
 

Respondent-Appellant.
 

WEAVER, J. (nonparticipation statement).
 

I have decided not to participate in this case for the
 

following reasons: 


•First, to expedite for the sake of the child this case,
 

which has been in the Supreme Court for over a year;1
 

•Second, to defer to the decisions of the respondent
 

party, the biological mother, and her attorney not to
 

1
 After this case is completed, I will publish at my


personally funded website, JusticeWeaver.com, a proposed court


rule designed to shorten the appellate process and eliminate


appellate delays in cases involving the termination of


parental rights by ensuring that they will not be in the


appellate system for more than eleven months (eight months in


the Court of Appeals, three months in the Supreme Court) after


the claim of appeal is filed. 

remit/waive any possible disqualification; and
 

•Third, to maintain public trust and confidence in the
 

judiciary. 


There are no court rules establishing the procedure for
 

a Michigan Supreme Court justice’s decision whether or not to
 

refrain from participation in a case. Traditionally, the
 

decision has been left to the discretion of the individual
 

justices, and nothing has been revealed to the public. 


I propose for public comment the following amendments of
 

Michigan Court Rule 2.003. These amendments provide that when
 

the issue of disqualification is raised, a justice should
 

publish in the record of the case the reasons for the decision
 

to participate in the case or not, and outline the procedure
 

for a justice to raise his potential disqualification with the
 

parties and their attorneys. 


(C)(5)Disqualification of a Justice. If a
 

justice’s participation in a case is challenged by


a written motion or if the issue of participation is


raised by the justice or another justice, the


challenged justice shall decide the issue and


publish in the record of the case that justice’s


reasons for the decision to participate or not. 


* * *
 

(D)(2)Procedure for a Justice. If it appears


that there may be grounds or possible grounds for


disqualification, the justice may have the clerk of


the supreme court send the parties the justice’s


written explanation of the grounds or possible


grounds for disqualification, and ask the parties


and their attorneys to consider whether to waive any


disqualification. If, following disclosure of any
 

2
 
grounds or possible grounds for disqualification


other than personal bias or prejudice concerning a


party, the parties all notify the clerk of the


supreme court in writing that the justice should not


be disqualified, and the justice is then willing to


participate, the justice may participate in the


case. 


I have in effect followed the above procedures in this case.
 

My decision not to participate in this case is based on
 

a communication that I had on Monday, April 28, 2003 with the
 

state’s central Family Independence Agency office in Lansing
 

regarding an issue raised by a justice at oral argument on
 

April 9, concerning the number of attachment and bonding
 

experts in Michigan—“Do you think there are 10,000 experts in
 

this field?” 


The communication occurred at the end of a telephone
 

conversation with a staff person to the Governor’s Task Force
 

on Juvenile Justice (Children’s Justice Task Force), which I
 

chair. This staff person is employed by the state’s central
 

FIA office in Lansing with task force funds. The conversation
 

dealt with matters pertaining only to task force business
 

until the end, when in passing, I asked the staff person how
 

many experts on attachment and bonding there are in Michigan.
 

Although he did not know, he connected me to someone whom he
 

thought might know, a person who is also employed by the
 

state’s central FIA office in Lansing. After checking, this
 

person informed me that there may be two such experts in
 

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Michigan and certainly not 10,000. Late on Monday, April 28,
 

I shared that information with the justices on the Court,
 

writing: 


In a preliminary contact with the Family


Independence Agency in Lansing the agency indicated


that it was aware of two Michigan experts on bonding


and attachment. Ms. Richardson is one of those two
 

experts. 


Chief Justice Corrigan contacted me late on Friday, May
 

2, and suggested that my communication with the state FIA
 

could be considered an ex parte communication, contrary to the
 

Code of Judicial Conduct Canon 3. Although I believed this
 

communication was not an ex parte communication—that the
 

state’s central FIA office in Lansing is not a party in this
 

case because the Kent County division of the FIA filed the
 

petition and is a party in the case—as discussed below, I
 

recognized that it is a question of law and fact which has not
 

been decided by this Court. 


Because the Chief Justice raised the question whether it
 

was an ex parte communication, and ex parte communications can
 

be grounds for disqualification, I believed the parties and
 

their attorneys had a right to know of the communication.
 

Late Friday, May 2, I contacted the Clerk of the Supreme Court
 

for the “proper procedure” to raise my possible
 

disqualification. Although Michigan Court Rule 2.003(D)
 

applies to trial judges and does not refer to Supreme Court
 

4
 
justices, this court rule sets out the procedure that seemed
 

to be possibly applicable. Pursuant to Michigan Court Rule
 

2.003(D) and Code of Judicial Conduct Canon 3C and D, I
 

decided to contact the parties and attorneys and raise the
 

issue of my possible disqualification in this case.2
 

In an attempt to expeditiously resolve this issue, on
 

Tuesday, May 6, in accordance with the court rule, MCR
 

2.003(D), I had the Clerk of the Supreme Court send to the
 

parties and attorneys a letter detailing the substance of the
 

communication, stating that the information had been given to
 

the other justices, informing them that it did not appear that
 

the communication with the staff of the state’s central FIA in
 

2
 Code of Judicial Conduct Canon 3C provides, “A judge


should raise the issue of disqualification whenever the judge


has cause to believe that grounds for disqualification may


exist under MCR 2.003(B).”
 

Code of Judicial Conduct Canon 3D provides, “A
 

disqualification of a judge may be remitted as provided by MCR


2.003(D).” 


Michigan Court Rule 2.003(D)provides:
 

“If it appears that there may be grounds for


disqualification, the judge may ask the parties and


their lawyers to consider, out of the presence of


the judge, whether to waive disqualification. If,


following disclosure of any basis for
 

disqualification other than personal bias or
 

prejudice concerning a party, the parties without


participation by the judge, all agree that the


judge should not be disqualified, and the judge is


then willing to participate, the judge may


participate in the proceedings. The agreement


shall be in writing or placed on the record.”
 

5
 
Lansing had given or would give the Kent County FIA or their
 

attorney a procedural or tactical advantage, and stating that
 

I had not been prejudiced or biased by the communication or by
 

the information I received. I asked the parties and attorneys
 

whether they would waive or remit any possible
 

disqualification, and asked them to respond with that decision
 

in writing to the Clerk of the Supreme Court, Mr. Corbin
 

Davis, by 5:00 p.m. on Friday, May 9.
 

On Thursday May 8, the Kent County prosecutor,
 

representing the Kent County FIA office, and the
 

attorney/guardian ad litem for the child both sent in their
 

decision to remit any disqualification. Late Friday
 

afternoon, May 9, the attorney for the respondent party, the
 

biological mother, sent a letter stating that he had not been
 

in contact with his client, and that accordingly he was
 

declining to remit any disqualification. I requested the
 

Clerk of the Supreme Court to forward a copy of the attorney’s
 

letter to all the justices.3

 Later that same day I had the
 

Clerk of the Supreme Court contact the attorney for the
 

biological mother by fax, informing him that he had the time
 

he needed to make contact with his client before making the
 

decision on whether to remit any disqualification. On Monday,
 

3 The Clerk of the Supreme Court did forward a copy of


the attorney’s letter to all the justices on Monday, May 12,


2003. 


6
 
May 12, the biological mother’s attorney notified the Clerk of
 

the Supreme Court by faxed memorandum that he had communicated
 

with his client, and that she agreed with the decision not to
 

remit or waive any disqualification.
 

I continue to believe that the state’s central FIA office
 

in Lansing is not a party in a termination-of-parental-rights
 

case brought by a county FIA office. Nevertheless,
 

preliminary research does not reveal any decision by this
 

Court regarding whether the state central FIA office in
 

Lansing is a party in a case brought by a county FIA office.
 

This question is one of both law and fact. In order to
 

resolve it, this Court would need to hold an evidentiary
 

hearing and make a finding on this point. Such a hearing and
 

the time needed to make the legal decision would further delay
 

this case. 


Accordingly, for all the above reasons, I am not
 

participating in this case. 


Elizabeth A. Weaver
 

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