Opinion
SC 165889 COA 363164
01-31-2024
In re D.N. DAILEY, Minor.
Wayne CC Family Division: 2019-000790-NA
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
By order of September 15, 2023, the children's lawyer-guardian ad litem was invited to answer the application for leave to appeal the May 18, 2023 judgment of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The parties shall file supplemental briefs in accordance with MCR 7.312(E), addressing whether, when a child is in the care of a relative, the trial court is required to consider and eliminate available alternative remedies short of termination as a matter of: (1) constitutional due process, see generally Washington v Glucksberg, 521 U.S. 702, 721 (1997) (The government may not infringe on fundamental liberty interests "unless the infringement is narrowly tailored to serve a compelling state interest."); or (2) statute, see MCL 712A.19b(5); and (3) whether the trial court erred in this case.
The Clerk of the Court is to schedule the case for argument at the May 2024 session, to be argued the same day as In re Bates, Minors (Docket No. 165815). Motions to extend the time for the filing of briefs will not be considered.
Amici who appeared at the application stage are invited to file supplemental briefs amicus curiae. The State Bar of Michigan Family Law and Children's Law Sections, the Prosecuting Attorneys Association of Michigan, and the University of Detroit Mercy Law Juvenile Appellate Practice Clinic are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.
Zahra, J., would deny leave to appeal.
Viviano, J. (dissenting).
Although it is unusual to dissent from an order to hear oral arguments on the application, I feel compelled to do so here for the following reasons. The resolution of this termination of parental rights case, like many cases in our court system, has already been seriously delayed by our response to the COVID-19 pandemic. In a case focused on the best interests of a child who needs stability and permanence, those interests have already been negatively affected by the amount of time (nearly five years) that it has taken for this case to be resolved by the trial court and the Court of Appeals and to be considered by this Court. Against that backdrop, we are presented with a legal theory that is on very shaky ground and a factual record that would not support the respondent-father's claim for relief even if he could convince us to change the governing legal standards. In particular, the respondent-father has opposed the child's placement with the maternal grandmother and has not shown that the maternal grandmother or anyone else is willing to serve as a guardian. Indeed, respondent-father appears to have expressly waived the guardianship issue in the trial court. In addition, it is uncontested that the respondent-father has continued to abuse illegal drugs throughout these proceedings and that his drug use has impaired his ability to parent the child. I see no reason for-and fear much harm to the child will result from-the Court's decision to further delay the stability and permanence that this child needs and deserves. I respectfully dissent.