Opinion
No. 343715
12-20-2018
In re A. K. R., MOSES Minor.
UNPUBLISHED St. Clair Circuit Court Family Division
LC No. 16-000358-NA Before: MURRAY, C.J., and SHAPIRO and RIORDAN, JJ. SHAPIRO, J. (concurring).
I concur in the result. I write separately, however, to note that the trial court improperly withheld parenting time during the pendency of this case. The language of MCL 712A.18(1)(n) is unambiguous in its requirement that "the court shall permit the juvenile's parent to have regular and frequent parenting time" and that parenting time "shall not be less than 1 time every 7 days . . . ." (Emphasis added). The "[u]se of the word 'shall' connotes a mandatory duty imposed by law." Sharp v Huron Valley Bd of Ed, 112 Mich App 18, 20; 314 NW2d 785 (1981).
MCL 712A.18(1)(n) sets forth two exceptions to this otherwise mandatory schedule. The first is not relevant here as it addresses exigent circumstances. The second and relevant exception allows the court to vary from the rule only if "the court determines that parenting time, even if supervised, may be harmful to the juvenile's life, physical health, or mental well-being . . . ." MCL 712A.18(1)(n) was recently added by the Legislature in an apparent attempt to overrule this Court's decision in In re Laster, 303 Mich App 485; 845 NW2d 540 (2013). In Laster, this Court determined that MCL 712A.13a(13), which required a finding of harm before parenting time could be suspected, governed parenting time only until the adjudication and that thereafter the trial court had discretion to suspend parenting time and impose conditions. Id. at 488-490. However, effective September 19, 2016, the Legislature amended MCL 712A.13a(13) and added MCL 712A.18(1)(n), which applies to the dispositional phase of the proceedings. 2016 PA 191. Thus, in PA 191 the Legislature reestablished the requirement that a court cannot suspend parenting time before a termination petition is filed without a finding of harm.
The trial court in this case made no such determination. To the contrary, the transcripts make clear that the suspension of parenting time was imposed to obtain respondent's compliance with court-ordered drug testing and sobriety and not due to any likely harm to the child from supervised visitation. Indeed, suspension of parenting time was never specifically addressed by the referee. The requirement was imposed on August 7, 2017, when the referee adopted, in full, the caseworker's list of recommendations. That list of recommendations included "[t]hat [respondent's] parental visitation be suspended at this time and be reinstated once [he] has completed 30 days of clean drug screens . . . and is able to engage in outpatient mental health substance abuse treatment." This brief statement contains no grounds for the request and does not meet the statutory requirement that visitation may be suspended only if it could be harmful to the child. The same is true of the next hearing on October 30, 2017, when the entire discussion of the subject was the caseworker's statement that "[v]isitation was suspended for [respondent] at the last hearing and he's been made aware of this arrangement, that he needs to have 30 days of clean screens to resume visits" and her request that the suspension be continued on the same grounds and conditions.
It is clear that the suspension was intended to compel respondent to comply with orders that he achieve sobriety. However, absent a demonstrable danger to the child as a result of visitation, suspension on this basis is improper. Suspension of parenting time may not be used as a sanction to compel compliance with behavioral requirements. This is directly addressed in the State of Michigan Children's Foster Care Manual.
Parenting time is not be cancelled, postponed, or denied as a discipline measure for children who have misbehaved or not followed the rules of their out-of-home placement. Similarly, parents must not be prevented from interaction with their children because they are unable to pay for necessary transportation or if they have not complied with the treatment plan; for example when a parent has a missed or positive drug screen.
The court may order less frequent or no parent time, if parenting time, even when supervised, may be harmful to the child. The court must order the child to have psychological evaluation, counseling, or both, to determine the appropriateness and the conditions of parenting time. [FOM 722-06I, pp 8-9 (emphasis added).]
The majority overlooks the requirements of the statute and the direction of the Foster Care Manual by concluding, after-the-fact, that a finding that parenting time would be harmful could have been justified. I disagree. First, the referee made no findings of likely harm. Second, listing the reasons why the child came into custody does not explain a post-removal decision to suspend mandatory visitation; respondent's drug and alcohol use, the condition of the home, and the unconfirmed suspicion of possible sexual abuse of a different child were all present at the outset of the case when visitation was permitted. Further, neither the caseworker nor the trial court ever explained how these concerns were not addressed by ordering that the visitation be supervised and occur outside the home. And the only condition for visitation to resume was that respondent have 30 days of clean drug tests. Sobriety is a laudable goal in these cases and often central to the ultimate decision whether to terminate rights, but its absence is not, in and of itself, proper grounds to suspend visitation.
The majority identifies some of the respondent's behavior that led to removal and jurisdiction as grounds to conclude that visitation was harmful to the child. However, as noted, the same behaviors were present at the time of removal and visitation was permitted. On May 15, 2015, the caseworker did report that the child showed some aggression and "difficulty" following parental visits. However, these comments were in reference to both respondent and the child's mother and no restriction was placed on the mother's visitation. The decision to suspend only respondent's visitation is consistent with the purpose of the suspension being to compel sobriety, not to protect the child from harm during visitation.
I agree with the majority that termination was proper. I do not believe that the suspension of visitation is grounds to reverse in this case due to the extent of the evidence on the substantive questions and the lack of objection throughout the trial court proceedings. However, a failure to adhere to the requirements of MCL 712A.18(1)(n) is plainly improper and, given different facts, may be found to require reversal of a trial court's findings as to the child's best interests or the statutory grounds for termination.
/s/ Douglas B. Shapiro