If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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

C O U R T O F A P P E A L S

FOR PUBLICATION

In re S. R. RICHARDSON, Minor. July 25, 2019

9:05 a.m.

No. 346903 & 346904

Saginaw Circuit Court

Family Division

LC No. 17-035259-NA

Before: SAWYER, P.J., and BORRELLO and SHAPIRO, JJ.

BORRELLO, J.

In these consolidated appeals,1 respondents appeal the termination of their parental rights 

under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist) and (g) 

(failure to provide proper care and custody). For the reasons set forth in this opinion, we vacate 

the trial court’s order and remand this matter for further proceedings.

I. BACKGROUND

This case initially came to the trial court by way of a Department of Health and Human 

Services (DHHS) initiated child-protective proceeding regarding SRR on June 26, 2017, after 

SRR tested positive for the presence of marijuana at birth. The petition alleged that mother had 

an extensive history of substance abuse that had resulted in the termination of her parental rights 

to her two older children. The prior terminations occurred in 2015 and were based on mother’s 

substance abuse and methamphetamine production. Father was not the father of those two older 

children. The petition further alleged that mother had failed to benefit from the services the 

DHHS had provided, that mother had knowingly used marijuana while she was pregnant, and 

that mother had placed SRR at an unreasonable risk of harm through her substance abuse that 

resulted in SRR’s prenatal marijuana exposure. The only petition allegation against father, other 

 1 In re Richardson Minor, unpublished order of the Court of Appeals, entered January 9, 2019 

(Docket Nos. 346903 and 346904). 
-2-

than that he was SRR’s father, was added to the petition by oral amendment at the adjudication 

plea hearing. This allegation stated that father was currently incarcerated with the Michigan 

Department of Corrections (MDOC) and unable to provide a care plan for SRR.

The trial court assumed jurisdiction on the basis of mother’s and father’s respective pleas 

of admission to the petition allegations. The petition had originally sought termination at the 

initial disposition. However, the referee noted at the adjudication hearing that mother had 

“shown some significant desires to make major changes in her life that weren’t made during the 

termination back in 2015” and that “[g]iven her age and situation the Court is of the opinion that 

she deserves to have that opportunity based on the information I have at this point in time so I 

would be looking at having the termination taken off the table to both these individuals and work 

with them.” The referee warned mother that this was “a huge break” for her and that she was 

“on what we call a short leash.” The referee also stated, “The key is—you understand—it’s kind 

of your last straw given that you’ve had significant treatment—my understanding at least—or 

opportunities for treatment previously. And this is a chance for you to make that final step to 

completely get away from substances.” The referee further indicated that termination could 

become an option again if mother did not “stay on the track of sobriety.”

The initial disposition was held on August 28, 2017. Father was incarcerated but the 

court was unable to secure his presence by video link because father had been transferred to a 

different facility, apparently unbeknownst to his attorney or the court. MDOC staff also 

apparently ignored the orders that had been sent out indicating that father was to be made 

available for the hearing. Nonetheless, father’s attorney waived any issue with the lack of 

father’s presence, stating that he had “no objection proceeding without him today” subject to 

maintaining father’s “right to object” to anything “out of the ordinary.”

2

 The referee stated, 

 2 Regarding dispositional hearings, MCR 3.973(D)(2) states that the “respondent has the right to 

be present or may appear through an attorney.” Notably, father had a right while he was 

incarcerated to participate in this hearing by telephone or videoconferencing technology, and this 

right is protected under these circumstances by placing certain obligations on the DHHS, the 

court, and the MDOC. See generally, MCR 2.004. For example, it is incumbent upon the “party 

seeking an order regarding a minor child,” in this case the DHHS, to “contact the [MDOC] to 

confirm the incarceration and the incarcerated party’s prison number and location.” MCR 

2.004(B)(1). As another example, the court must be satisfied that the requirements of MCR 

2.004(B) were met before issuing each order requiring the MDOC to allow the incarcerated party 

to participate in the hearing by telephone or videoconference. MCR 2.004(C). Furthermore, the 

“court may impose sanctions if it finds that an attempt was made to keep information about the 

case from an incarcerated party in order to deny that party access to the courts.” MCR 2.004(G). 

“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 opportunity to participate in the proceedings as 

described in this rule,” but “[t]his provision shall not apply . . . if the court determines that 

immediate action is necessary on a temporary basis to protect the minor child.” MCR 2.004(F). 

In this case, although it seems that an attempt was made to give father the chance to participate 

in this hearing by videoconference, there is no indication that father declined or otherwise caused 

his inability to participate. It instead appears that father’s ability to appear at the hearing was 
-3-

“Being that this is original disposition with him in prison there isn’t a whole lot we can do at this 

point for him . . . we’ll get him up to speed and it will be probably the next hearing that’s gonna 

be most important for him anyways.” 3

Mother had begun an inpatient substance abuse treatment program at Kairos Treatment 

Facility approximately one week before this hearing. Mother enrolled herself in this program. 

The court report also indicated that mother’s parenting time visits had been positive with no 

concerns. Mother indicated that she had enrolled in a parenting class, which she had personally 

arranged to be provided to her and other women at Kairos, and was “willing to take as many 

parenting classes as—as need be.” Mother also stated that at Kairos, she was participating in 

therapy and was working with doctors to get her seizures under control through medication. Her 

seizures were not completely under control yet.

The referee then questioned mother as follows about her seizures:

Q. I am extremely knowledgeable and familiar with seizures. Obviously, 

do you—have they given you a diagnosis of—sometimes they call it epilepsy, 

sometime they call is [sic] seizure disorder.

A. Epilepsy is my diagnosis.

Q. Okay. All right. And are they working with a neurologist over there 

right now?

A. Yes.

Q. Okay, and who’s the neurologist working on it?

A. At—I believe it’s Abbott.

Q. Okay.

A. Ah, that sounds about right.

 

impaired by the negligence of institutional actors or other individuals involved with the case. It 

also does not appear that the referee’s decision to proceed was based on a finding that immediate 

action was necessary on a temporary basis for the child’s protection.

3 While the referee’s initial statement is at odds with our understanding of the law--our Supreme 

Court has held that the “state is not relieved of its duties to engage an absent parent merely 

because that parent is incarcerated.” In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010)—

it is clear that the referee correctly understood that the state’s obligations were not completely 

negated by father’s incarceration. The record reveals that the referee ordered the foster care 

worker at the conclusion of the hearing to contact father in prison and work with him to 

immediately develop a parent agency treatment plan.
-4-

Q. All right. Have you been working with a neurologist up to this point? 

‘Cause you said you have seizures.

A. I was not. I was using medical marijuana.

Q. Okay.

A. So.

Q. What you will probably find out in talking with a neurologist and 

everything, marijuana can exacerbate the seizures, depending on the types that 

you’re having and everything because of fact—so it can make it worse for you. 

So, the question you want to maybe verify and everything with all the information 

I’ve been presented with is a problem for people with seizures.[4]

A. It was working for me but that’s why I’ve got to try (inaudible)—

Q. Right.

A. —at the time, you know.

Q. Right.

A. I’m going—I will give it up. I want my baby back,—

Q. Right.

A. —so I’ll play the battle with medication and do what I gotta do.

* * *

Q. Yes. . . . Grand mal, petit mal?

A. Grand mal.

Q. Okay. All right. How frequently were you having them?

A. Until now I wasn’t having them har—hardly ever but now—

Q. Okay, so now that you’re off and everything—and it may afford the 

frontal lobe have a different affect or anything, other areas that can exacerbate I 

know that, so but there’s also other medications so you’re right, they will 

prescribe medications and then if it’s not stable, then they raise the dosage until 

 4 Notably, the referee’s statements about the effect of marijuana on people who suffer from 

seizures did not refer to any record evidence.
-5-

such time as they figure we may need to try something. Usually it’s finding the 

right dosage.

Mother indicated that she was on two different medications, one of which was already prescribed 

at the maximum dosage, and that her dosage for the other medication had been increased the 

previous night at the emergency room.

The referee stated, “Realistically, the issue I think we’re looking at right now is sobriety.” 

The referee noted mother’s methamphetamine history and continued, “you got into marijuana 

and it’s not unusual for people who use to get that, but I’m just letting you know I’m aware, you 

know, and those are things you need you—you need to change all your friends—that’s part of 

life.” The referee subsequently stated the following to mother:

Right now you’re doing the right thing because as I indicated, you go into inpatient I’m w—I’m willing to work with you. I have—I took termination off the 

table. You know, they could have presented it, but I was gonna rule let’s give you 

a shot.

* * *

My personal feeling is right now you need to focus on yourself and the 

issues that cause you to keep using, you know, substances. Right now it’s my 

understanding marijuana. I have no information that you use anything else. So 

what sounds like is you gained some knowledge from the other case, haven’t fully 

gotten there yet, now you’re clear, we need to get you off the weed because you 

were still using, even after—here’s what you have to realize. We worked out the 

plea, you continued to use.[5] That says to me you have a difficulty stopping 

using, okay? That what it says to me. I’m not gonna hold it against you but if 

you got out and you started to use again and everything, that’s when it’s going to 

be a problem.

At the hearing held on November 15, 2017,6 foster-care worker Ryan Feldt reported that 

mother was released from Kairos on September 22, 2017, after completing 30 days of treatment. 

She last tested positive for marijuana on August 9, 2017, and drug screens on October 19 and 25, 

2017, and November 6, 2017, were negative. Feldt stated that mother was attending counseling, 

and her therapist told Feldt that they were working on helping mother face her problems rather 

 5 The six drug screens that mother completed leading up to this hearing were all positive for 

marijuana. 

6 As with the previous hearing, father was still incarcerated and his presence by telephone or 

videoconference was not secured “for some reason.” Father’s attorney was present and waived 

father’s right to be present at the hearing. Father’s attorney stated with respect to the next 

hearing to be held, “I assume the Court will take the steps to have my client participate by 

video.”
-6-

than run away from them. SRR was injured while in her foster placement, having incurred two 

skull fractures after being dropped on her head. She received medical treatment and it seemed as 

though she would recover.7 SRR had since been moved to a relative placement. There were no 

concerns with mother’s parenting time, which had recently been increased. Mother indicated 

that her seizure medication was regulated and that she had not had a seizure in two months. 

Mother also testified that someone else was always home with her and that she could tell when 

she was about to have a seizure, so she knew how to protect herself and the baby.

The referee stated,

I need to know that you’re done with this illegal drug lifestyle and anybody else 

around you. All right? I mean, that’s a huge thing going from meth and losing 

your kids and cooking and all that stuff and now you’re still back using marijuana 

and you lose your child and everything else. That’s the negative side. The flip 

side is you’ve gone after it with gangbusters. You jumped into Kairos, you did 

that program 30 days and they, you know, felt that that was sufficient for you—it 

may very well have been. It looks like you’ve gotten serious and really buckled 

down. I hope this is a life change and not let’s get through this, gets my kids 

back, get them out of my life and then go back and do things, okay? So we’ve got 

you on medication now with the doctor, appropriate actual treatment rather than, 

you know, the other thing in reference to your seizures, along that line, so things 

are moving well but we have to be cautious and we have to know that this is a 

lifetime. If you—let’s see, you went in, you pled on the 7th of August, on the 

22nd is when you entered Kairos and so you’ve been on—out on September 22nd, 

so we’re a month and a half since you got out which is once you get out, that’s 

when you wanna see how well are you going to do. And usually it’s at the three 

month mark that we start to see people starting to also to fade; they were doing 

well and then they start fading. So we need to get there to see that, all right? So 

what I’m telling you is be patient because you got a huge break and everything, so 

let’s be patient along those lines as far as returning.

By the time of the next review hearing on January 26, 2018,8 mother had tested positive 

for marijuana, but she also had secured a medical marijuana card. The referee stated:

It’s my understanding that mom has obtained a medical marijuana card and the 

purpose for that is for seizures and what we’re looking at at this point in time th—

this Court is unaware of marijuana being used for seizures. I’m gonna give you 

 7 The foster parent was investigated as a result of this incident.

8 Father’s attorney stated that father was not present because he was still incarcerated and 

although he was scheduled to appear by videoconferencing, the previous hearing had gone longer 

than expected. Father’s attorney represented that the court’s deputy clerk contacted the facility 

where father was incarcerated and “they were unable to accommodate us for purposes of this 

morning’s hearing.” Father’s attorney again waived father’s attendance.
-7-

the benefit of the doubt. I mean, I’ve actually—the information I have from my 

life experience is contrary.

The referee’s skepticism became more apparent as the hearing progressed. The referee stated:

It’s hard for me to believe that her—that if it’s an addiction that it’s that strong 

that she would jeopardize her child, yet the Court has never heard of that 

medication being used for seizures, so I’m giving the opportunity for counsel to—

and I’ll be honest with you, you’ve got a written document, that’s not gonna be 

sufficient for the Court. I need testimony.

The referee also told mother that “It—it doesn’t matter what it’s for. You suddenly decided to 

take on something that the Court had already said no and you’re supposed to be substance abuse 

free so now this.”

The referee nonetheless determined that an evidentiary hearing would be held to consider 

the matter, stating as follows:

All right. And I will indicate for the record here that my understanding is 

she’s testing positive for marijuana because she’s got a medical marijuana card 

and the issue that we’re gonna hear is is that appropriate or not. And just so you 

understand, it’s one of the things that because substance abuse was an issue in the 

past and obviously methamphetamine, you know, so—something different. Any 

prescription medication at this point in time is going to come under—under some 

scrutiny. It’s not just that it’s marijuana. It’s suddenly you came up with—I’m 

gonna pick Norco and everything and all of a sudden you’re taking Norco for 

seizures and everything like that, I’d have the same question, okay? ‘Cause I’ve 

not heard of that before. . . . The Court is open to hearing testimony concerning 

that issue and then we can resolve that and you can make your decisions after that 

hearing depending on how it works out.

At the hearing, mother called Dr. Anthony Schultz to testify about mother’s use of 

medical marijuana. He had treated patients with seizures as an emergency physician and had 

been fully trained to manage all forms of seizure. Schultz currently practiced holistic and 

alternative medicine.

Schultz testified that he met with mother in January 2018, because she wanted to be able 

to use medical marijuana to manage her seizures and treat her chronic ankle pain. According to 

Schultz, marijuana has been shown to help control grand mal seizures, and six states have 

approved the use of medical marijuana solely for the treatment of seizures even though those 

states do not allow medical marijuana to be used to treat other conditions. Schultz testified that 

as a medical doctor, he had concluded that marijuana was an allowable medication for mother’s 

condition and that it was likely to help her condition. Schultz explained that mother had 

developed intolerances for the medication that she was currently using to control her seizures 

when she visited him, and she had reported that her current medication was not working well by 

itself for her.
-8-

Schultz indicated that he considered a patient’s substance abuse history and that he knew 

that mother had gone through a drug rehabilitation program. However, he was unaware of her 

prior arrest for using methamphetamine. He explained that his opinion about the appropriateness 

of medical marijuana would be influenced by recent addiction issues and that he did not find it 

concerning if a patient had previous experience with marijuana.

Schultz stated that he advised patients with children to moderate their use of marijuana to 

ensure that they were not under the influence while caring for children, either by not using or by 

using only a small amount. He noted that this level of caution was also necessary with other 

prescription anti-seizure medications, which also could have “ill effects.” Schultz testified that if 

mother used medical marijuana as she had been instructed, she could safely care for her child.

A letter from mother’s neurologist, Dr. Margaret Frey, was admitted into evidence. This 

letter stated:

[Mother] is a patient under my care for management of epilepsy. Her 

epilepsy is currently controlled with medications and she is compliant. She 

utilizes medical marijuana for other symptoms, though she states that her seizures 

are markedly improved when she uses it. There is evidence that medical 

marijuana is helpful for reducing breakthrough seizures in patients with 

intractable epilepsy and I do at times use it for this purpose. Though I do not see 

a clear need for medical marijuana for her epilepsy in this case, it will not worsen 

her seizures and I am not opposed to her using it from a neurologic standpoint.

Mother testified that she sought her medical marijuana card to treat her epilepsy and 

ankle pain. According to mother, her grand mal seizures were not being adequately controlled 

by her other medication. Mother stated that she had fewer seizures once she started using 

medical marijuana and that the medical marijuana significantly improved her quality of life. She 

also stated that she tried to keep her marijuana use to a minimum, unless her pain was worse, as 

Schultz had recommended. Mother understood the importance of not being impaired while she 

was caring for her child, and her current safety plan was to have three other adults living with her 

so that someone could care for the child if mother needed to use her medicine. Mother admitted 

that she struggled with addiction, and she continued to participate in substance abuse therapy to 

prevent her from relapsing. Mother agreed not to use medical marijuana within eight hours of 

any parenting time visit.

Feldt testified that despite Schultz’s testimony about mother’s medical marijuana use to 

control her seizures, the DHHS’s stance was that mother “remain sober” and that his opinion had 

not changed. However, Feldt also admitted that there had not been any incident during mother’s 

parenting time that would cause any concern about the child’s safety in mother’s care.

The referee ruled as follows:

I don’t find it’s being used for the seizure purposes; I think it’s being used for 

other reasons and we gave you the break in the first place to get off of the 

marijuana along those lines. Because we—because this Court is concerned that 

you’re continuing and there is an addiction phase there with the marijuana and 
-9-

that more the for seizure purposes has been a secondary or third reason being put

forward that there’s other reasons starting with pain. So, that suggests to me, in 

all candor, that you’re trying to find reasons to justify having it prescribed to you. 

And so for that reason at this point in time I am going to indicate that marijuana 

usage must stop.

In reaching this conclusion, the referee noted that marijuana was “the issue” at the 

beginning of the case. The referee claimed that at the beginning of the case “there was no 

discussion about it’s being used for controlling of seizures or anything along those lines.” 

However, the referee’s recollection on this point was incorrect. As earlier cited, mother and the 

referee engaged in a lengthy conversation about mother’s epilepsy and treatment at the initial 

disposition. During the course of that discussion, mother indicated that she had been using

medical marijuana to control her seizures, the referee explained his belief that medical marijuana 

was not a valid treatment for seizures and actually made them worse, and mother essentially 

agreed to try more traditional treatment options for a time in an attempt to comply with the 

court’s wishes and regain custody of her child. 

With respect to the referee’s ruling on mother’s use of medical marijuana at the 

conclusion of the evidentiary hearing on the matter, the referee found that the doctors did not 

make it clear that medical marijuana “is what is medically necessary.” However, there is no 

medical authority cited in the record to support this conclusion. Additionally, this ruling runs 

contrary to the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., which 

states, in relevant part: “[a] person shall not be denied custody or visitation of a minor for acting 

in accordance with this act, unless the person’s behavior is such that it creates an unreasonable 

danger to the minor that can be clearly articulated and substantiated.” MCL 333.26424(d). 

Furthermore, 

There is a presumption that a qualifying patient or primary caregiver is 

engaged in the medical use of marihuana in accordance with this act if the 

qualifying patient or primary caregiver complies with both of the following:

(1) Is in possession of a registry identification card.

(2) Is in possession of an amount of marihuana that does not exceed the 

amount allowed under this act. The presumption may be rebutted by evidence 

that conduct related to marihuana was not for the purpose of alleviating the 

qualifying patient’s debilitating medical condition or symptoms associated with 

the debilitating medical condition, in accordance with this act. [MCL 

333.26424(e).]

In this case, there is no dispute that mother had a medical marijuana card. Despite this 

evidence, the referee made a finding that mother’s marijuana use was not for a legitimate 

medical purpose because, in the referee’s opinion, marijuana was not “medically necessary.” 

But this is not the standard under MCL 333.26424(d) and (e). In addition, in order to reach this 

conclusion, the referee had to completely discount the unrebutted evidence submitted by two 

doctors that medical marijuana is a valid treatment for epilepsy, and the referee had to discredit 

mother’s testimony that it was actually helping her manage her seizures. We also note that both 
-10-

seizures and epilepsy are included within the MMMA’s definition of “debilitating medical 

condition.” See MCL 333.26423(b)(2). Additionally, the referee gave undue weight to mother’s 

substance abuse history and mischaracterized the record with respect mother’s marijuana use at 

the beginning of this case. The referee essentially substituted his own judgment for that of the 

medical professionals and thus erred; the record simply does not support the referee’s factual 

finding or legal conclusion.

9

The trial court’s decision to terminate the parental rights of mother and father, which 

occurred approximately four months later, was similarly focused on mother’s medical marijuana 

use. The trial court terminated mother’s and father’s parental rights under MCL 

712A.19b(3)(c)(i) and (g), which provide as follows:

(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 child’s age.

* * *

(g) The parent, although, in the court’s discretion, financially able to do 

so, 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.

With respect to mother, the referee found that termination was supported by MCL 

712A.19b(3)(c)(i) because the condition that led to mother’s adjudication was her substance 

abuse addiction and mother had continued to use substances by using marijuana, which the 

referee did not believe was actually necessary for a medical purpose.10 The referee’s reasoning 

 9 We review questions of law de novo. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253

(2008). The trial court’s factual findings are generally reviewed for clear error. In re Fried, 266 

Mich App 535, 541; 702 NW2d 192 (2005); In re Payne/Pumphrey/Fortson, 311 Mich App 49, 

56; 874 NW2d 205 (2015).

10 The referee also noted one instance where mother had recently tested positive for cocaine. 

However, mother disputed the accuracy of this drug test, testified that she had observed her drug 

testing samples not being properly sealed, and adamantly denied using cocaine. She admitted 
-11-

was focused on the fact that mother was continuing to use marijuana, but the referee did not 

explain how that continued use had actually had any negative effect on her current parenting 

ability. The referee found that mother was given a chance at the initial disposition to achieve 

sobriety and be reunited with SRR, that mother never mentioned at that time that she had a 

seizure disorder or that she needed to use marijuana to control her seizures, that mother never 

mentioned having chronic ankle pain that required use of marijuana, and that the letter from 

mother’s neurologist indicated that mother’s seizures were controlled without needing to use 

medical marijuana. The referee speculated that mother’s marijuana use would lead to a harmful 

environment for SRR.

Regarding MCL 712A.19b(3)(g), the referee incorporated the above reasoning and found 

that this ground had also been established to support terminating mother’s parental rights. The 

referee also found that mother “appeared to have the ability to work” but failed to maintain

employment and instead was seeking Social Security benefits.

With respect to father, the referee maintained his focus on mother’s medical marijuana 

use and also relied on MCL 712A.19b(3)(c)(i) and (g) to support terminating father’s parental 

rights. Father had been released on parole less than six months before the termination hearing, 

and he had successfully obtained employment within two weeks of his release. The referee 

found that father knew about mother’s issues with substance addiction and that he nonetheless 

decided to move in with mother, chose to work 16-18 hours a day for six days a week, and relied 

on mother to raise SRR without protecting SRR from mother’s “severe addiction.”

II. ANALYSIS

In matters regarding the termination of parental rights, we must simultaneously recognize 

the inherent authority of the trial court to control the proceedings, and to some extent the 

behavior of the parties, to ensure that the parties are mindful of and demonstrate their ability to 

ensure the health, safety, and best interests of their minor children while also bearing in mind 

that the “fundamental liberty interest of natural parents in the care, custody, and management of 

their child does not evaporate simply because they have not been model parents or have lost 

temporary custody of their child to the State.” Santosky v Kramer, 455 US 745, 753; 102 S Ct 

1388; 71 L Ed 2d 599 (1982). Furthermore, we must acknowledge that “[a] parent’s right to 

control the custody and care of her children is not absolute, as the state has a legitimate interest 

in protecting ‘the moral, emotional, mental, and physical welfare of the minor’ and in some 

circumstances ‘neglectful parents may be separated from their children.’ ” In re Sanders, 495 

Mich 394, 409-410; 852 NW2d 524 (2014), quoting Stanley v Illinois, 405 US 645, 652; 92 S Ct 

1208; 31 L Ed 2d 551 (1972). With these principles in mind, we examine the record to 

determine whether there was clear and convincing evidence presented in this matter sufficient to 

legally justify the termination of respondents’ parental rights.

 

that she was using marijuana, but she maintained that she was using it for the medical purpose of 

controlling her seizures and pursuant to a valid medical marijuana card.
-12-

Our review of the record leads us to conclude that the referee’s factual findings were 

clearly erroneous and that the above cited statutory grounds were not established by clear and 

convincing evidence. See In re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013) (“We 

review for clear error a trial court’s finding of whether a statutory ground for termination has 

been proven by clear and convincing evidence. A finding of fact is clearly erroneous if the 

reviewing court has a definite and firm conviction that a mistake has been committed, giving due 

regard to the trial court’s special opportunity to observe the witnesses.”) (citations and quotation 

marks omitted).

The condition that led to mother’s adjudication was her use of marijuana during her 

pregnancy that caused SRR to be born testing positive for marijuana. However, by the time of 

the termination hearing, there was no evidence that mother’s use of medical marijuana was 

having any negative effect on her ability to parent or causing any risk of harm to SRR. In fact, 

the evidence was overwhelming that there were no significant concerns about mother’s parenting 

time visits and that mother appropriately cared for SRR during visits. There was no evidence 

that mother was impaired or “high” during her parenting time visits, and mother indicated that 

she understood the importance of not being in an impaired state while caring for SRR. Further, 

mother testified that using medical marijuana reduced the frequency of her seizures and that her 

parenting ability would be negatively affected if she were subject to the likelihood of having 

seizures more frequently.

11 Mother testified that she was not using any other drugs. Regarding 

her ability to work, mother testified that she had applied for Supplemental Security Income (SSI) 

based on her epilepsy and mental disabilities.

12 She also testified that by the time of the 

termination hearing, she was living with father, who was employed, and that she stayed home 

and took care of the residence. Mother’s name was on the lease.

Following our review of the record in this matter, we conclude that the referee placed far 

too great an emphasis on the fact that mother consumed medical marijuana. As illustrated 

herein, the referee felt it important to share his opinions on the consumption of marijuana, 

regardless of whether consumption was for medical uses, and in instances when his assertions 

were factually inaccurate—i.e., the use of marijuana to control seizures—he nevertheless clung 

to his preconceived opinions. Lost in his discussions about the perils of consuming marijuana 

was the absence of any evidence which demonstrated that respondent mother’s use of medical 

marijuana interfered with her parenting. Hence, the referee’s preconceived opinions and over 

emphasis on respondent mother’s use of medical marijuana caused him to lose sight of the fact 

that it is not the mere undesirable acts (presuming, of course, that the use of a prescribed 

medicine constituted an undesirable act) of the parents alone that justifies the state in terminating 

parental rights; there must be some showing of harm or actual risk of harm to the child that 

 11 Notably, mother testified that she had “quite a few” grand mal seizures while she was in her 

inpatient drug treatment program at Kairos. This testimony is contrary to the referee’s assertion 

in his findings of fact that “[t]here is no doubt that had she had seizures there, Kairos would have 

not only noted it to DHHS and in their reports, but they would have transported [mother] to the 

hospital . . . .”

12 These included bipolar disorder, depression, and anxiety.
-13-

results from the parents’ acts. See In re LaFrance, 306 Mich App 713, 731; 858 NW2d 143 

(2014) (“[D]rug use alone, in the absence of any connection to abuse or neglect, cannot justify 

termination solely through operation of the doctrine of anticipatory neglect.”);13 cf. also In re 

Curry, 113 Mich App 821, 830; 318 NW2d 567 (1982) (“In sum, we are persuaded that the 

criminal status alone of these respondents is not a sufficient basis for the probate court’s 

assumption of jurisdiction. Some showing of unfitness of the custodial environment was 

necessary and no such showing was made in the instant case. The state should not inject itself 

into the lives of its citizens except when specifically authorized by law and when necessary to 

prevent abuse and neglect.”). “Child protective proceedings are not criminal proceedings,” and 

unlike criminal proceedings, the “purpose of child protective proceedings is the protection of the 

child” rather than to determine a defendant’s guilt or innocence. In re Brock, 442 Mich 101, 

107-108; 499 NW2d 752 (1993) (emphasis added). “The juvenile code is intended to protect 

children from unfit homes rather than to punish their parents.” Id. at 108.

The record does not support the conclusion that there was clear and convincing evidence 

that mother continued to have an issue with substance abuse that presented an actual risk of harm 

to SRR. The concerns expressed in the proceedings below were based more on the referee’s 

speculation that mother’s use of medical marijuana might lead to creating a harmful environment 

for SRR even though the overwhelming evidence related to mother’s current medical marijuana 

 13 In LaFrance, this Court dealt with a situation similar to the one presented here, where little 

deference was shown for the medical judgment of a respondent’s treating physicians. The 

LaFrance Court explained as follows:

Indeed, an early signal that consumption of prescription medication would 

be overvalued in this case was when, at the initial dispositional hearing, the 

caseworker expressed her understanding that both respondents had prescriptions 

for hydrocodone, and that tests revealed concentrations of that drug well within 

therapeutic levels, but nonetheless insisted that respondents terminate what the 

witness understood to be respondents’ respective physician-directed courses of 

treatment in deference to her own general concerns about the hazards of that 

pharmaceutical. [In re LaFrance, 306 Mich App at 731 n 7.]

In concluding that the respondents’ failure to control their substance abuse problems, standing 

alone, was not sufficient to support terminating the respondents’ parental rights to three children 

under MCL 712A.19b(3)(c)(i), (g), and (j), the LaFrance Court reasoned:

Cases that come before this Court often dramatically illustrate that 

substance abuse can cause, or exacerbate, serious parenting deficiencies, but the 

instant case is a poor example. We do not mean to imply any approval of the 

protracted, and sometimes illegal, use of prescription medications so much in 

evidence in this case, even as we refrain from repeating the trial court’s apparent 

mistake of simply assuming that overuse, or illegal acquisition, of such 

medications is itself ground for concluding child neglect or abuse will ever result 

from it. [In re LaFrance, 306 Mich App at 731.]
-14-

use and parenting skills indicated just the opposite. See In re LaFrance, 306 Mich App at 732 

(“Termination of parental rights requires ‘both a failure and an inability to provide proper care 

and custody,’ which in turn requires more than ‘speculative opinions . . . regarding what might

happen in the future.’ ”) (citation omitted). While we are not downplaying mother’s history of 

substance abuse, not every ingestion of a substance constitutes abuse, especially when viewed in 

the larger context of whether there is an effect of the substance use on the child or the parent’s 

parenting ability. There must be facts within the record demonstrating that the parent’s acts are 

actually harming or presenting an articulable risk of harm to the child, and the trial court cannot 

simply presume a risk of harm from its own prior experiences or personal disapproval of a 

parent’s choices. See MCL 333.26424(d) (“A person shall not be denied custody or visitation of 

a minor for acting in accordance with this act, unless the person’s behavior is such that it creates 

an unreasonable danger to the minor that can be clearly articulated and substantiated.”) 

(emphasis added); In re LaFrance, 306 Mich App at 731-732; cf. also In re Curry, 113 Mich 

App at 830. Rather, in this case, the record reveals that the referee essentially placed the burden 

on mother to demonstrate her fitness as a parent and her ability to provide proper care and 

custody, which is an unconstitutional means of deciding whether to terminate parental rights. 

See In re LaFlure, 48 Mich App 377, 384-386; 210 NW2d 482 (1973); see also In re Trejo, 462 

Mich 341, 350; 612 NW2d 407 (2000), abrogated by statute on other grounds as stated in In re 

Moss, 301 Mich App at 83, 88 (“[I]t is well established that the petitioner for the termination of 

parental rights bears the burden of proving at least one ground for termination.”). Without such 

evidence, there was not clear and convincing evidence to show that mother had not rectified the 

condition that led to her adjudication or that mother could not provide proper care and custody, 

and the trial court therefore committed clear error by terminating mother’s parental rights.

With respect to father, whose parental rights were also terminated essentially due to 

mother’s medical marijuana use as well, the record similarly does not support the referee’s 

determination that statutory grounds had been proven by clear and convincing evidence.

 As previously discussed, there was no evidence to suggest that mother presented a 

current risk of harm to the child despite her use of medical marijuana. Although the referee 

appeared to fault father for the nature of his work schedule and how it interfered with his ability 

to participate in various services, it seems commendable to us that father found significant 

employment rather than remaining unemployed or underemployed.14 Father testified that he was 

concerned about keeping his job, which “looked very good for [his] parole officer” and would 

allow him to remain out of prison. Father also testified that he would be laid off for a period of 

time in the winter, during which time he could participate in more services. Moreover, there was 

evidence that father had shown improvement in his parenting skills during his parenting time 

visits over the past months since his release. The referee also supported his decision by 

 14 The referee’s reasoning on this point illustrates the catch-22 parents are often put in during 

child-protective proceedings. They are considered neglectful either because they have 

inadequate employment or because they have employment that does not offer ideal flexibility or 

control regarding scheduling, without consideration for the nature of the employment for which 

the parent might actually be qualified. 
-15-

referencing drug tests for father that were positive for marijuana and cocaine. But father denied 

using these drugs, testified about the loose adherence to procedures at the drug testing facility, 

and he testified that he had had to complete drug screens as part of his parole and did not have 

any parole violations. As with mother, we conclude that there was not clear and convincing 

evidence that that father was harming or presenting an articulable risk of harm to SRR, either 

based on his own actions or based on his plan of relying on mother to care for the child in their 

joint home while he worked. Thus, the trial court clearly erred by terminating his parental rights

under MCL 712A.19b(3)(c)(i) and (g) as well.

Accordingly, we vacate the trial court’s order terminating the parental rights of mother 

and father, and we remand for further proceedings not inconsistent with this opinion.

Vacated and remanded. We do not retain jurisdiction.

/s/ Stephen L. Borrello 

/s/ David H. Sawyer 

/s/ Douglas B. Shapiro