DHS v. Tyler, (Unpublished, #292818), 1/26/10
Juvenile Review MenuMarvel Tyler appeals the order terminating his parental rights pursuant to MCL 712A.19b(3)(g).
At the time this child protection case began in October, 2007, Mr. Tyler was a putative father and was incarcerated in a state prison in Indiana. Neither the initial petition nor the amended petitions made any neglect or abuse allegations concerning him. Shortly after the court took jurisdiction of the minor, genetic testing established Tyler as the child’s father in December, 2007.
Shortly before the permanency planning hearing in September, 2008, the court appointed counsel for the father. Neither the father’s attorney nor the court expressed concern that the father was not afforded an opportunity to participate in that hearing by telephone. The foster care worker testified that the father had written to the court and indicated that his earliest release date was April 2010. However, the worker had never spoken to Mr. Tyler and knew nothing of his pre-incarceration contacts with his son.
When a termination petition was filed in October, 2008, DHS requested that the father’s rights be terminated under MCL 712A.19b(3)(g) and (j). At the hearing on that petition in December, 2008, again none of the participants expressed concern about Mr. Tyler’s complete absence from the proceedings.
At the continued termination hearing in March, 2009, the caseworker indicated that she had written to the father indicating that his earlier letter had been received but that since he had not been involved with or provided care for his son and would likely not be able to do so in a reasonable amount of time that the Department was going to request his rights be terminated. The worker also suggested that if there was any paperwork that he wished to submit (certificates, programs he completed, etc.) that he forward those to the caseworker so she might submit them to the court. The father responded saying he was frustrated with the DHS stance and that he cares for his son and wanted to care for him when he was released from prison. Apparently, Mr. Tyler also wrote his son two letters.
At the close of the termination hearing, the trial court found that Mr. Tyler had been in prison for the entire time the child has been under the court’s jurisdiction. Further, the trial court found that the father only sent his son 2 letters, had not provided any support for the child and that his earliest release date was over a year away. It concluded that the father’s parental rights should be terminated under MCL 712A.19g(3)(g) based on clear and convincing evidence.
On appeal Mr. Tyler asserts he was denied procedural and substantive due process by the court’s neglect to either secure his presence at the termination hearing or his participation by telephone. The father also suggested that MCR 2.004(A)(2) envisions the opportunity for incarcerated parties in termination proceedings to have telephonic access to the proceeding. The Court of Appeals acknowledged that MCR 2.004 only applies to those parents incarcerated with the Michigan Department of Corrections. This father was incarcerated in Indiana. Even so, the Court concluded that an important question remained as to whether the trial court violated the father’s due process by failing to meaningfully involve him in this child protection case.
The parent’s right to raise his child is a well established “essential” and “precious” right in our jurisprudence. Where the parent’s interest is most in jeopardy, due process concerns are most heightened.
In Matthews v. Eldridge, 424 US 319 (1976), the United States Supreme Court set out three factors that serve as proper guideposts for determining the process due in a particular case. Those factors include 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value of additional or substitute procedural safeguards and 3) the government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
First, the private interest of a parent in the care, custody and control of his children is one of the oldest fundamental liberty interests recognized by the United States Supreme Court. Thus, this first Eldridge factor weighs heavily in favor of respondent’s right to participate telephonically in the proceedings.
Second, without the father’s participation in the proceedings, the Court of Appeals believed there would be a substantial risk of an erroneous deprivation of the father’s parental rights. The DHS workers lacked reliable information about 1) the nature of the father/child relationship here before the father’s incarceration, 2) the length of time he had been incarcerated, 3) the date of his potential release, 4) whether respondent had attempted to plan for the child or desired to share involvement in that process, 5) whether he had obtained any services in prison and 6) whether respondent’s family members were interested in caring for the child. These gaps gave rise to substantial risk of an erroneous deprivation of the father’s parental rights without enhanced due process considerations.
Third, the cost and inconvenience of a telephone call imposes on the state is a de minimus fiscal and administrative burden. So, fundamental due process notions obligated the court to afford the respondent the right to meaningful participation in the termination hearing by telephone.
Furthermore, the Court of Appeals opined that insufficient information existed in the record that Mr. Tyler could not parent his son within a reasonable time. The father twice contacted his child and forcefully advised the petitioner of his interest in parenting his son. The petitioner did not perform any evaluation of the father’s parenting capability and he was slated to be released from prison in a relatively short time. The fact that the trial court did not terminate the mother’s rights reinforced the Court of Appeals analysis. Despite the mother’s danger to her children and her serious and long standing psychiatric problems, the trial court concluded that clear and convincing evidence had not been established that it was in the best interest of the children to terminate the mother’s parental rights. Thus, because the child was to remain a temporary court ward, on remand the father should be afforded a meaningful opportunity to participate in further hearings and a treatment plan, if available.
In sum, the trial court’s neglect to give the father a meaningful opportunity to be heard during the proceedings, as well as the petitioner’s failure to perform even the most rudimentary investigation about the father’s background and capabilities foreclosed the possibility of a termination decision predicated on clear and convincing evidence.
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Last updated: 2-2-10
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