in Re Sanders Minors ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
In re SANDERS
Docket No. 146680. Argued November 7, 2013 (Calendar No. 6). Decided June 2, 2014.
The Department of Human Services (DHS) petitioned the Jackson Circuit Court, Family
Division, to assume jurisdiction over the minor children of Tammy Sanders and Lance Laird
after the youngest child was born with drugs in his system. The court, Richard N. LaFlamme, J.,
removed the child from Sanders’s custody and placed him with Laird, who at the time also had
custody of the older child. The DHS subsequently filed an amended petition, alleging that Laird
had tested positive for cocaine, that Sanders had admitted using drugs with Laird, and that
Sanders had spent the night at Laird’s home despite a court order that prohibited her from having
unsupervised contact with the children. At the preliminary hearing, the court removed the
children from Laird’s custody and placed them with the DHS. Laird contested the allegations in
the amended petition and requested an adjudication with respect to his fitness as a parent.
Sanders pleaded no contest to the allegations of neglect and abuse in the amended petition, but
Laird declined to enter a plea and instead repeated his demand for an adjudication and requested
that the children’s temporary placement be changed from their aunt to their paternal
grandmother, with whom Laird resided. At a placement hearing, Laird admitted that he had
allowed Sanders to spend one night at his house after the court removed the children from her
custody but asserted that the children never saw her that night. Laird also testified that he was on
probation for a domestic violence conviction. The court took the placement motion under
advisement and maintained placement of the children with their aunt pending Laird’s
adjudication. A few weeks later, the DHS dismissed the remaining allegations against Laird, and
his adjudication was canceled. Following a review hearing, the court ordered Laird to comply
with a service plan, including parenting classes, a substance-abuse assessment, counseling, and a
psychological evaluation; restricted his contact with the children to supervised parenting time;
and continued placement of the children with their aunt. Laird subsequently moved for
immediate placement of the children with him, arguing that the court had no authority to
condition the placement of his children on his compliance with a service plan because he had not
been adjudicated as unfit. The court denied the motion, relying on the one-parent doctrine
derived from In re CR, 250 Mich App 185 (2002), which provides that if jurisdiction has been
established by the adjudication of only one parent, the court may then enter dispositional orders
affecting the parental rights of both parents. The Court of Appeals denied Laird’s application for
interlocutory leave to appeal in an unpublished order, entered January 18, 2013 (Docket No.
313385). The Supreme Court granted Laird leave to appeal. 493 Mich 959 (2013).
In an opinion by Justice MCCORMACK, joined by Chief Justice YOUNG and Justices
CAVANAGH, KELLY, and ZAHRA, the Supreme Court held:
Application of the one-parent doctrine impermissibly infringes the fundamental rights of
unadjudicated parents without providing adequate process, and the doctrine is consequently
unconstitutional under the Due Process Clause of the Fourteenth Amendment. Due process
requires a specific adjudication of a parent’s unfitness before the state can infringe that parent’s
constitutionally protected parent-child relationship.
1. MCL 712A.2(b) governs child protective proceedings generally. MCL 712A.2(b)(1)
gives the family court jurisdiction over a child in cases of parental abuse or neglect. Child
protective proceedings have two phases: the adjudicative phase and the dispositional phase.
Generally, the court determines during the adjudicative phase whether it can take jurisdiction
over the child in the first place. Once the court has jurisdiction, it determines during the
dispositional phase what course of action will ensure the child’s safety and well-being. With
respect to the adjudicative phase, once the court authorizes a petition containing allegations of
abuse or neglect, the respondent parent can admit the allegations, plead no contest to them, or
request a trial (the adjudication) and contest the merits of the petition. If there is a trial, (1) the
parent is entitled to a jury, (2) the rules of evidence generally apply, and (3) the petitioner must
prove by a preponderance of the evidence one or more of the statutory grounds for jurisdiction
alleged in the petition. When the allegations are proved by a plea or at the trial, the adjudicated
parent is determined to be unfit. Under MCR 3.973(A) and MCL 712A.6, the purpose of the
dispositional phase is to then determine what measures the court will take with respect to a child
properly within its jurisdiction and, when applicable, against any adult. Unlike the adjudicative
phase, the rules of evidence do not apply and the parent is not entitled to a jury determination of
facts. The dispositional phase ultimately ends with a permanency planning hearing, which
results in either the dismissal of the original petition and family reunification or the court’s
ordering the DHS to file a petition for the termination of parental rights.
2. The one-parent doctrine permits the family court to obtain jurisdiction over a child on
the basis of the adjudication of either parent and then proceed to the dispositional phase with
respect to both parents. The doctrine therefore eliminates the petitioner’s obligation to prove that
the unadjudicated parent is unfit before that parent is subject to the dispositional authority of the
court.
3. Included in the Fourteenth Amendment’s promise of due process is a substantive
component that provides heightened protection against governmental interference with
fundamental rights and liberty interests, including the right of parents to make decisions
concerning the care, custody, and control of their children. A parent’s right to control the
custody and care of his or her children is not absolute because the state has a legitimate interest
in protecting the children’s moral, emotional, mental, and physical welfare, and in some
circumstances neglectful parents may be separated from their children. The United States
Constitution, however, recognizes a presumption that fit parents act in the best interests of their
children and that there will normally be no reason for the state to insert itself into the private
realm of the family to further question the ability of fit parents to make the best decisions
concerning the rearing of their children. Due process demands that an individual be afforded
minimal procedural protections before the state can burden a fundamental right, and the three-
part balancing test of Mathews v Eldridge, 424 US 319 (1976), is applied to determine what
process is due when the state seeks to curtail or infringe an individual right. The test requires
consideration of three factors: (1) the private interest that the official action will affect, (2) the
risk of an erroneous deprivation of the interest through the procedures used and the probable
value, if any, of additional or substitute procedural safeguards, and (3) the state’s interest,
including the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail. In essence, the test balances the costs of certain
procedural safeguards (in this case, an adjudication) against the risks of not adopting those
procedures.
4. In CR, the Court of Appeals interpreted MCR 3.973(A) as permitting the family court
to enter dispositional orders affecting the rights of any adult, including the parental rights of
unadjudicated parents, as as long as the court had established jurisdiction over the child.
According to the DHS, the requirement of a dispositional phase obviated an unadjudicated
parent’s right to a fitness hearing. Applying the three-part Mathews test, however, led to the
conclusion that dispositional hearings are constitutionally insufficient and that due process
requires that every parent receive an adjudication hearing before the state can interfere with his
or her parental rights. The private interest at stake is a core liberty interest recognized by the
Fourteenth Amendment. With respect to the second and third Mathews factors, the state has an
interest in protecting the health and safety of minors, which will, in some circumstances, require
temporary placement of a child with a nonparent. This interest runs parallel with the state’s
interest in maintaining the integrity of the family unit whenever possible, however, and the
state’s interest is undermined when a parent is erroneously deprived of his or her fundamental
right to parent a child. The state has an equally strong interest in ensuring that a parent’s fitness
or lack thereof is resolved before the state interferes with the parent-child relationship.
Therefore, the probable value of extending the right to an adjudication to each parent in a child
protective proceeding benefits both public and private interests. While requiring adjudication of
each parent will increase the burden on the state in many cases, an adjudication would
significantly reduce any risk of the erroneous deprivation of the parent’s right. The adjudication
is the only fact-finding phase regarding parental fitness, and the procedures afforded parents are
tied to the allegations of unfitness in the petition, protecting them from the risk of erroneous
deprivation of their parental rights. Dispositional hearings do not serve this same function
because the court is concerned at that time only with what services and requirements will be in
the children’s best interests. There is no presumption of fitness in favor of the unadjudicated
parent. The procedures during the dispositional phase are not related to the allegations of
unfitness because the question before the court at a dispositional hearing assumes a previous
finding of parental unfitness. Therefore, while extending the right to an adjudication to all
parents will impose additional burdens on petitioners, those burdens do not outweigh the risks
associated with depriving a parent of that right without any determination that he or she is unfit,
as the one-parent doctrine allows. The one-parent doctrine is therefore unconstitutional and In re
CR is overruled.
5. Laird’s current incarceration for violating federal drug-trafficking laws did not render
his complaint moot. Incarcerated parents can exercise the constitutional right to direct the care
of their children while incarcerated, and Laird had tried to do just that, requesting several times
during the proceedings below that the children be placed with their parental grandmother. As
long as the children are provided adequate care, state interference with those decisions is not
warranted.
Trial court order vacated and case remanded for further proceedings.
Justice MARKMAN, joined by Justice VIVIANO, dissenting, stated that the issue was
whether the Legislature acted in an unconstitutional manner by enacting statutes that for more
than 70 years have provided the underpinnings for the one-parent doctrine. Although Justice
MARKMAN agreed with the majority that all parents are entitled to due process in the child
protective context, with the presumption of fitness and the burden of proof to the contrary resting
on the state, he saw no constitutional barriers to the long-established procedures in Michigan that
guarantee that such a fitness determination is fairly made. He concluded that CR correctly held
that the one-parent doctrine, as well as the statutes and court rules on which the doctrine was
grounded, were constitutional and would have affirmed the family court. In its opinion the
majority only perfunctorily referred to its threshold obligation to presume the constitutionality of
statutes and court rules and did not accord any weight to the good-faith judgments of the
Legislature. While Justice MARKMAN agreed with the majority that absent exigent
circumstances, the state cannot remove a child from a parent’s custody or otherwise interfere
with a parent’s parental rights unless a court first finds that the parent is unfit, he did not believe
that the statutory scheme (which includes the one-parent doctrine) allows the state to do so. The
statutory provisions and the court rules presume that parents are fit and require the state to prove
a parent’s unfitness before the state can remove a child from the parent’s custody. Once the
court adjudicates one parent pursuant to MCL 712A.2(b), however, the court can exercise
jurisdiction over the child and, pursuant to MCL 712A.6, enter any orders affecting adults that
the court determines are necessary for the physical, mental, or moral well-being of the child. If a
child is being abused or neglected, it is imperative that a court have the power to intervene
immediately and effectively. The issue in this case concerned the propriety of an unadjudicated
parent being deprived of the adjudicative phase of a child protective proceeding. The
adjudicative phase only determines whether the court has jurisdiction over the child. It is the
initial phase in which the court acquires jurisdiction in order to attempt to alleviate the problems
in the home so that the children and the parents can be reunited. A finding of jurisdiction does
not necessarily or immediately foreclose the parent’s rights to his or her child, and not every
adjudicative hearing results in removal of custody. Once a jury has determined that one parent
has abused or neglected a child, however, that child should not have to wait for a secure
placement until a determination, following an additional jury trial, that the other parent also
abused or neglected the child. Abolishing the one-parent doctrine will cost the state in terms of
time, financial resources, and social-services manpower because the state will now have to
adjudicate both parents as unfit before a court can even exercise jurisdiction over abused and
neglected children. Most troubling are the additional costs and burdens that will now be placed
on abused and neglected children, who are in the greatest need of expedited public protection but
will be given that protection considerably less quickly because both parents are for the first time
constitutionally entitled to jury trials. Although the majority addressed at length the parental
interests involved in the case, it mentioned in only the most peremptory way the existence of the
children’s interests. While the majority apparently believed the most important (if not the
exclusive) constitutional interest involved was that of the parent, Justice MARKMAN believed that
the most important (albeit not the exclusive) constitutional interest involved was that of the
children. He disagreed that both parents are constitutionally entitled to a jury trial on their
fitness before children can be placed within the protective jurisdiction of the court. The
Legislature adequately protected the due process rights of an unadjudicated parent of an abused
or neglected child by requiring a hearing on the parent’s fitness before the state can interfere with
his or her parental rights, and Laird was reasonably determined to be unfit after several such
hearings in this case.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED June 2, 2014
STATE OF MICHIGAN
SUPREME COURT
____________________________________
In re SANDERS, Minors.
____________________________________
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v No. 146680
LANCE LAIRD,
Respondent-Father-Appellant,
and
TAMMY SANDERS,
Respondent-Mother,
BEFORE THE ENTIRE BENCH
MCCORMACK, J.
At issue in this case is the constitutionality of Michigan’s one-parent doctrine.
The one-parent doctrine permits a court to interfere with a parent’s right to direct the
1
care, custody, and control of the children solely because the other parent is unfit, without
any determination that he or she is also unfit. In other words, the one-parent doctrine
essentially imposes joint and several liability on both parents, potentially divesting either
of custody, on the basis of the unfitness of one. Merely describing the doctrine
foreshadows its constitutional weakness.
In the case before us, upon petition by the Department of Human Services (DHS),
the trial court adjudicated respondent-mother, Tammy Sanders, as unfit but dismissed the
allegations of abuse and neglect against respondent-appellant-father, Lance Laird. Laird
moved for his children to be placed with him. Although Laird was never adjudicated as
unfit, the trial court denied Laird’s motion, limited his contact with his children, and
ordered him to comply with a service plan. In justifying its orders, the court relied on the
one-parent doctrine and the Court of Appeals’ decision in In re CR, 250 Mich App 185;
646 NW2d 506 (2002), from which that doctrine derives.
Laird believes that the one-parent doctrine violates his fundamental right to direct
the care, custody, and control of his children because it permits the court to enter
dispositional orders affecting that right without first determining that he is an unfit parent.
We agree. Because application of the one-parent doctrine impermissibly infringes the
fundamental rights of unadjudicated parents without providing adequate process, we hold
that it is unconstitutional under the Due Process Clause of the Fourteenth Amendment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Laird is the father of two boys: P, born in 2010, and C, born in 2011. Sanders is
the boys’ mother. Four days after C was born drug positive, the Jackson Circuit Court,
2
acting on a petition filed by the DHS, removed C from Sanders’s custody and placed the
child with Laird. At that time, P was also in Laird’s custody.
Several weeks later, the DHS filed an amended petition alleging that Laird had
tested positive for cocaine, that Sanders had admitted “getting high” with Laird, and that
Sanders had spent the night at Laird’s home despite a court order that prohibited her from
having unsupervised contact with the children. At a November 16, 2011 preliminary
hearing, the court removed the children from Laird’s custody and placed them in the
custody of the DHS.1 Laird contested the allegations in the amended petition and
requested an adjudication with respect to his fitness as a parent.
On February 7, 2012, Sanders pleaded no contest to the allegations of neglect and
abuse in the amended petition. Laird declined to enter a plea and instead repeated his
demand for an adjudication. Laird also moved to change the children’s temporary
placement from their paternal aunt to the children’s paternal grandmother, with whom
Laird then resided. The court conducted a placement hearing at which several witnesses,
including Laird, testified. Laird admitted that he had allowed Sanders to spend one night
at his house after the court removed the children from her custody. Laird claimed,
however, that the children never saw Sanders that night. Laird also testified that he was
on probation stemming from a domestic violence conviction. The court took the
1
Consistently with the court rule governing pretrial placement of children in child
protective proceedings, the DHS temporarily placed the children with their aunt. See
MCR 3.965(C)(2) (“ If continuing the child’s residence in the home is contrary to the
welfare of the child, the court shall not return the child to the home, but shall order the
child placed in the most family-like setting available consistent with the child’s needs.”).
3
placement motion under advisement and maintained placement of the children with their
aunt pending Laird’s adjudication, which was scheduled for May 1, 2012.
A few weeks later, on April 18, 2012, the DHS dismissed the remaining
allegations against Laird, and Laird’s adjudication was cancelled. At a May 2, 2012
review hearing, the court ordered Laird to comply with services, including parenting
classes, a substance-abuse assessment, counseling, and a psychological evaluation.
Laird’s contact with his children was restricted to supervised parenting time, and
placement of the children continued with their aunt. On August 22, 2012, Laird moved
for immediate placement of the children with him. Laird argued that the court had no
legal authority to condition the placement of his children on his compliance with a
service plan because he had not been adjudicated as unfit. The court, relying on the
Court of Appeals’ decision in CR, denied the motion.
Laird’s application for interlocutory leave to appeal in the Court of Appeals was
denied for lack of merit. In re Sanders Minors, unpublished order of the Court of
Appeals, entered January 18, 2013 (Docket No. 313385). This Court granted leave to
appeal to address “whether the application of the one-parent doctrine violates the due
process or equal protection rights of unadjudicated parents.” In re Sanders, 493 Mich
959 (2013).2
2
After this Court granted leave to appeal, Laird was convicted in federal court of drug-
trafficking charges. See 21 USC 841(a)(1) and (b)(1)(B).
4
II. LEGAL BACKGROUND
A. STANDARD OF REVIEW
Whether child protective proceedings complied with a parent’s right to procedural
due process presents a question of constitutional law, which we review de novo. In re
Rood, 483 Mich 73, 91; 763 NW2d 587 (2009) (opinion by CORRIGAN, J.). The
interpretation and application of statutes and court rules are also reviewed de novo. In re
Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). Statutes are presumed to be
constitutional, and we have a duty to construe a statute as constitutional unless its
unconstitutionality is clearly apparent. Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d
127 (2003). We interpret court rules using the same principles that govern statutory
interpretation. Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005).
B. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN
A brief review of the court rules and statutes governing child protective
proceedings is helpful here. The juvenile code, MCL 712A.1 et seq., establishes
procedures by which the state can exercise its parens patriae authority over minors.
These procedures are reflected in Subchapter 3.900 of the Michigan Court Rules. In
Michigan, child protective proceedings comprise two phases: the adjudicative phase and
the dispositional phase. See In re Brock, 442 Mich 101, 108; 499 NW2d 752 (1993).
Generally, a court determines whether it can take jurisdiction over the child in the first
place during the adjudicative phase. Id. Once the court has jurisdiction, it determines
during the dispositional phase what course of action will ensure the child’s safety and
well-being. Id.5
The court’s authority to conduct those proceedings is found at MCL 712A.2(b),
which encompasses child protective proceedings generally. The first subsection of that
statute provides the court with jurisdiction over a child in cases of parental abuse or
neglect. MCL 712A.2(b)(1) (providing for jurisdiction over a juvenile whose parent
“neglects or refuses to provide proper or necessary support, education, medical, surgical,
or other care necessary for his or her health or morals”). To initiate a child protective
proceeding, the state must file in the family division of the circuit court a petition
containing facts that constitute an offense against the child under the juvenile code (i.e.,
MCL 712A.2(b)). MCL 712A.13a(2); MCR 3.961.3 If the court authorizes the petition,
the court may release the child to a parent, MCR 3.965(B)(12)(a), or, if the court finds
that returning the child to the home would be contrary to the child’s welfare, order that
the child be temporarily placed in foster care, MCR 3.965(B)(12)(b) and (C). The
respondent parent can either admit the allegations in the petition or plead no contest to
them. MCR 3.971. Alternatively, the respondent may demand a trial (i.e., an
adjudication) and contest the merits of the petition. MCR 3.972. If a trial is held, the
respondent is entitled to a jury, MCR 3.911(A), the rules of evidence generally apply,
3
While a petition is the ordinary route by which child protective proceedings begin, the
juvenile code also recognizes that exigent circumstances can require immediate action.
See MCL 712A.14a(1) (authorizing the immediate removal of a child without a court
order “[i]f there is reasonable cause to believe that a child is at substantial risk of harm or
is in surroundings that present an imminent risk of harm and the child’s immediate
removal from those surroundings is necessary to protect the child’s health and safety”);
see also MCL 712A.14b(1)(a) (allowing an ex parte order authorizing the DHS to
immediately take a child into protective custody before any hearing if a petition alleges a
similar “imminent risk of harm”).
6
MCR 3.972(C), and the petitioner has the burden of proving by a preponderance of the
evidence one or more of the statutory grounds for jurisdiction alleged in the petition,
MCR 3.972(E). When the petition contains allegations of abuse or neglect against a
parent, MCL 712A.2(b)(1), and those allegations are proved by a plea or at the trial, the
adjudicated parent is unfit. While the adjudicative phase is only the first step in child
protective proceedings, it is of critical importance because “[t]he procedures used in
adjudicative hearings protect the parents from the risk of erroneous deprivation” of their
parental rights. Brock, 442 Mich at 111.
Once a court assumes jurisdiction over a child, the parties enter the dispositional
phase. Unlike the adjudicative phase, here the rules of evidence do not apply, MCR
3.973(E), and the respondent is not entitled to a jury determination of facts, MCR
3.911(A). The purpose of the dispositional phase is to determine “what measures the
court will take with respect to a child properly within its jurisdiction and, when
applicable, against any adult . . . .” MCR 3.973(A) (emphasis added). The court’s
authority to enter these orders is found in MCL 712A.6.
The court has broad authority in effectuating dispositional orders once a child is
within its jurisdiction. In re Macomber, 436 Mich 386, 393-399; 461 NW2d 671 (1990).
And while the court’s dispositional orders must be “appropriate for the welfare of the
juvenile and society in view of the facts proven and ascertained,” MCL 712A.18(1), the
orders are afforded considerable deference on appellate review, see In re Cornet, 422
Mich 274, 278-279; 373 NW2d 536 (1985) (adopting the clear-error standard of review
for dispositional orders).
7
If certain requirements are met, the court can terminate parental rights at the initial
dispositional hearing, MCR 3.977(E);4 otherwise, the court continues to conduct periodic
review hearings and may enter orders that provide for services, direct the child’s
placement, and govern visitation, MCR 3.973(F); MCR 3.974; MCR 3.975. Before the
court enters any order of disposition, however, the DHS must prepare a case service plan
that includes a “[s]chedule of services to be provided to the parent . . . to facilitate the
child’s return to his or her home . . . .” MCL 712A.18f(3)(d).5 That case service plan
must also “provide for placing the child in the most family-like setting available and in as
close proximity to the child’s parents’ home as is consistent with the child’s interests and
special needs.” MCL 712A.18f(3). The court examines the case service plan pursuant to
MCL 712A.18f(4) and MCR 3.973(F)(2), and frequently adopts the DHS’s case service
plan and orders compliance with the services contained in the plan.
Ultimately, the dispositional phase ends with a permanency planning hearing,
which results in either the dismissal of the original petition and family reunification or the
court’s ordering the DHS to file a petition for the termination of parental rights.
4
Among other things, the petition must contain a request for termination, there must be
adequate grounds for the court’s jurisdiction, and the court must find by clear and
convincing legally admissible evidence that grounds exist for termination under MCL
712A.19b(3).
5
We note that the statute providing for case service plans, MCL 712A.18f, does not
distinguish between adjudicated parents and unadjudicated parents.
8
C. THE ONE-PARENT DOCTRINE
Because the jurisdictional inquiry is focused on the child, once there has been an
adjudication, either by trial or by plea, the court has jurisdiction over the child regardless
of whether one or both parents have been adjudicated unfit. MCL 712A.2(b). In cases in
which jurisdiction has been established by adjudication of only one parent, the one-parent
doctrine allows the court to then enter dispositional orders affecting the parental rights of
both parents. The one-parent doctrine is the result of the Court of Appeals’ interpretation
of Subchapter 3.9006 of the Michigan Court Rules in CR:
[O]nce the family court acquires jurisdiction over the children,
[MCR 3.973(A)] authorizes the family court to hold a dispositional hearing
“to determine [what] measures [the court will take] . . . against any
adult . . . .” [MCR 3.973(F)(2)] then allows the family court to “order
compliance with all or part of the case service plan and [. . .] enter such
orders as it considers necessary in the interest of the child.” Consequently,
after the family court found that the children involved in this case came
within its jurisdiction on the basis of [the adjudicated parent’s] no-contest
plea and supporting testimony at the adjudication, the family court was able
to order [the unadjudicated parent] to submit to drug testing and to comply
with other conditions necessary to ensure that the children would be safe
with him even though he was not a respondent in the proceedings. This
process eliminated the [petitioner’s] obligation to allege and demonstrate
by a preponderance of legally admissible evidence that [the unadjudicated
parent] was abusive or neglectful within the meaning of MCL 712A.2(b)
before the family court could enter a dispositional order that would control
or affect his conduct. [CR, 250 Mich App at 202-203.]
In simpler terms, the one-parent doctrine permits courts to obtain jurisdiction over a child
on the basis of the adjudication of either parent and then proceed to the dispositional
6
CR was decided when the court rules governing child protective proceedings and other
proceedings relating to minors were located in former Subchapter 5.900 of the Michigan
Court Rules. References to and quotations of former Subchapter 5.900 in CR have been
updated to reflect the rules currently found in Subchapter 3.900.
9
phase with respect to both parents. The doctrine thus eliminates the petitioner’s
obligation to prove that the unadjudicated parent is unfit before that parent is subject to
the dispositional authority of the court.
D. CONSTITUTIONAL PARENTAL RIGHTS
The Fourteenth Amendment of the United States Constitution provides that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.” US
Const, Am XIV, § 1. Included in the Fourteenth Amendment’s promise of due process is
a substantive component that “provides heightened protection against government
interference with certain fundamental rights and liberty interests.” Washington v
Glucksberg, 521 US 702, 720; 117 S Ct 2258; 138 L Ed 2d 772 (1997). Among these
fundamental rights is the right of parents to make decisions concerning the care, custody,
and control of their children. See Meyer v Nebraska, 262 US 390, 399-400; 43 S Ct 625;
67 L Ed 1042 (1923). In the words of this Court, “[p]arents 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 JK, 468 Mich 202, 210; 661 NW2d
216 (2003), citing Brock, 442 Mich at 109.
The right to parent one’s children is “essential to the orderly pursuit of happiness
by free men,” Meyer, 262 US at 399, and “is perhaps the oldest of the fundamental liberty
interests,” Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000)
(opinion by O’Connor, J.). The right is an expression of the importance of the familial
relationship and “stems from the emotional attachments that derive from the intimacy of
10
daily association” between child and parent. Smith v Org of Foster Families for Equality
& Reform, 431 US 816, 844; 97 S Ct 2094; 53 L Ed 2d 14 (1977).
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.” Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L
Ed 2d 551 (1972) (quotation marks and citation omitted). The United States
Constitution, however, recognizes “a presumption that fit parents act in the best interest
of their children” and that “there will normally be no reason for the State to inject itself
into the private realm of the family to further question the ability of [fit parents] to make
the best decisions concerning the rearing of [their] children.” Troxel, 530 US at 68-69(opinion by O’Connor, J.). Further, the right is so deeply rooted that “[t]he 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 . . . .” Santosky v
Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
The United States Supreme Court has also recognized that due process demands
that minimal procedural protections be afforded an individual before the state can burden
a fundamental right. In Mathews v Eldridge, the Supreme Court famously articulated a
three-part balancing test to determine “what process is due” when the state seeks to
curtail or infringe an individual right:
[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private interest that
will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally,
11
the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail. [Mathews v Eldridge, 424 US 319, 333, 335; 96
S Ct 893; 47 L Ed 2d 18 (1976).]
In essence, the Eldridge test balances the costs of certain procedural safeguards—here, an
adjudication—against the risks of not adopting such procedures. The Supreme Court has
regularly employed the Eldridge test to determine the nature of the process due in child
protective proceedings in related contexts. See Santosky, 455 US at 758 (“Evaluation of
the three Eldridge factors compels the conclusion that use of a ‘fair preponderance of the
evidence’ standard in [parental rights termination] proceedings is inconsistent with due
process.”); Smith, 431 US at 848-852 (addressing New York City’s procedures for
removing a minor from a foster home).
Our due process inquiry is also informed by Stanley v Illinois, a pre-Eldridge case
in which the Supreme Court held that the Fourteenth Amendment demands that a parent
be entitled to a hearing to determine the parent’s fitness before the state can infringe the
right to direct the care, custody, and control of his or her children. Stanley, 405 US at
649. Stanley addressed an Illinois statutory scheme that declared the children of
unmarried fathers, upon the death of the mother, to be dependents (i.e., wards of the state)
without a fitness hearing at which neglect was proved.7 The Stanley Court found this
7
Under then-existing Illinois law, the state could take custody of a child in a dependency
proceeding or in a neglect proceeding. “In a dependency proceeding [the state] may
demonstrate that the children are wards of the State because they have no surviving
parent or guardian. In a neglect proceeding it may show that children should be wards of
the State because the present parent(s) or guardian does not provide suitable care.”
Stanley, 405 US at 649 (citations omitted). The statute defined “parents” as “ ‘the father
and mother of a legitimate child, or the survivor of them, or the natural mother of an
illegitimate child, and includes any adoptive parent,’ ” but did not include unmarried
fathers. Id. at 650. Thus, the statute did not recognize Stanley as a parent, and it did not
12
scheme to be constitutionally infirm because it allowed the state to deprive Stanley of
custody without first determining that he was unfit at a hearing:
Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the procedure forecloses
the determinative issues of competence and care, when it explicitly disdains
present realities in deference to past formalities, it needlessly risks running
roughshod over the important interests of both parent and child. It therefore
cannot stand.
* * *
. . . The State’s interest in caring for Stanley’s children is de minimis
if Stanley is shown to be a fit father. [It] insists on presuming rather than
proving Stanley’s unfitness solely because it is more convenient to presume
than to prove. Under the Due Process Clause that advantage is insufficient
to justify refusing a father a hearing when the issue at stake is the
dismemberment of his family. [Id. at 656-658.]
The rule from Stanley is plain: all parents “are constitutionally entitled to a hearing on
their fitness before their children are removed from their custody.” Id. at 658.
III. ANALYSIS
At the onset, we note that the Court of Appeals’ interpretation in CR of
MCL 712A.6 and MCR 3.973(A) would seemingly grant trial courts unfettered authority
to enter dispositional orders, as long as the court finds them to be in the child’s best
interests.8 This Court, however, has a duty to interpret statutes as being constitutional
require the state to prove that Stanley was unfit in a neglect proceeding in order to
deprive him of custody of his children.
8
The dissent also emphasizes that MCL 712A.2(b)(1) refers singularly to “parent.” This
reference is consistent with the unremarkable idea that courts may assume jurisdiction
over a child on the basis of the adjudication of one parent. Laird’s challenge to the one-
parent doctrine does not challenge this proposition because the one-parent doctrine is not
concerned with the assumption of jurisdiction. In this case, for example, the trial court
properly assumed jurisdiction over the children on the basis of Sanders’s plea. See MCR
13
whenever possible. Taylor, 468 Mich at 6. Thus, if the Court of Appeals’ interpretation
permits trial courts to exercise their jurisdiction in a manner that impermissibly interferes
with a parent’s constitutional right to direct the care and custody of his or her child, as
Laird argues, we are duty-bound to reject it.
A. THE ONE-PARENT PROBLEM
Laird’s primary argument is that the one-parent doctrine is unconstitutional
because it allows courts to infringe the rights of unadjudicated parents to direct the care,
custody, and control of their children without an adjudication that those parents are unfit.
According to Laird, the facts of this case well illustrate the flaws inherent in the one-
parent doctrine in practice. After the DHS filed the neglect petition, Sanders entered a
no-contest plea to the allegations against her. This allowed the court to assume
jurisdiction over Laird’s children. The DHS did not pursue any allegations against Laird,
despite his demand for a trial. His fitness was never the subject of any hearing, and he
was never adjudicated as unfit. Nevertheless, the court refused to grant Laird custody of
his children and instead ordered him to comply with services ordered as part of the
dispositional plan.9 Laird contends that this process—the one-parent doctrine at work—
is forbidden by Stanley.
3.971. Rather than challenge the assumption of jurisdiction, Laird argues that the court’s
exercise of jurisdiction affecting his constitutional parental rights—that is, the one-parent
doctrine at work—is an unconstitutional interference with those rights.
9
To be clear, Laird’s parental rights were not and have not been terminated.
Nevertheless, temporary deprivation of custody is an “intrusion into the family sphere,”
Hunter v Hunter, 484 Mich 247, 269; 771 NW2d 694 (2009), and plainly infringes on
Laird’s constitutional rights as a parent, see Troxel, 530 US at 68 (opinion by O’Connor,
J.) (recognizing that parental rights are implicated in grandparent-visitation cases).
14
The DHS responds that Laird was afforded all the process that he was due by
virtue of the dispositional proceedings. According to the DHS, the dispositional phase
obviates an unadjudicated parent’s right to a fitness hearing.
As the Court of Appeals explained in CR, its interpretation of MCR 3.973(A)
permits the trial court to enter dispositional orders affecting the rights of “any adult,”
including the parental rights of unadjudicated parents, as long as the court has established
jurisdiction over the child. CR, 250 Mich App at 202-203. Because we have a duty to
interpret statutes and court rules as being constitutional whenever possible, we reject any
interpretation of MCL 712A.6 and MCR 3.973(A) that fails to recognize the unique
constitutional protections that must be afforded to unadjudicated parents, irrespective of
the fact that they meet the definition of “any adult.”10
Stanley is plain that Laird’s right to direct the care, custody, and control of his
children is a fundamental right that cannot be infringed without some type of fitness
hearing. We therefore begin our analysis by testing the DHS’s contention that a
dispositional hearing is a constitutionally sufficient process in light of the Eldridge
factors. We conclude that under Eldridge, dispositional hearings are constitutionally
10
MCR 3.973(A) states that, at a dispositional hearing, the court determines what
measures it will take regarding the child “and, when applicable, against any adult, once
the court has determined following trial, plea of admission, or plea of no contest that one
or more of the statutory grounds alleged in the petition are true.” While the parties have
focused on the constitutional implications of interpreting the phrase “any adult” as the
Court of Appeals did in CR, 250 Mich App at 202-203, we note that the phrase “when
applicable” can reasonably—and constitutionally—be interpreted to mean that when the
person meeting the definition of “any adult” is a presumptively fit parent, the court’s
authority during the dispositional phase is limited by the fact that the state must overcome
the presumption of parental fitness by proving the allegations in the petition.
15
inadequate; due process requires that every parent receive an adjudication hearing before
the state can interfere with his or her parental rights.
First, the importance of the private interest at stake here—a parent’s fundamental
right to direct the care, custody, and control of his or her child free from governmental
interference—cannot be understated.11 It is a core liberty interest recognized by the
Fourteenth Amendment. “Even when blood relationships are strained, parents retain a
vital interest in preventing the irretrievable destruction of their family life.” Santosky,
455 US at 753.
With respect to the second and third Eldridge factors, it is undisputed that the state
has a legitimate and important interest in protecting the health and safety of minors and,
in some circumstances, that the interest will require temporarily placing a child with a
nonparent. Stanley, 405 US at 652. It is this interest that lies at the heart of the state’s
parens patriae power. But this interest runs parallel with the state’s interest in
maintaining the integrity of the family unit whenever possible. MCL 712A.1(3) (“This
chapter shall be liberally construed so that each juvenile coming within the court’s
jurisdiction receives the care, guidance, and control, preferably in his or her own home,
11
We agree with the dissent that there is, of course, a second private interest that is
always relevant in child protective proceedings—the child’s interest in his or her own
welfare. If a parent is unfit, the child’s interest aligns with the state’s parens patriae
interest. On the other hand, the child also has an interest in remaining in his or her
natural family environment. In which direction the child’s interest preponderates cannot
be known without first a specific adjudication of a parent’s unfitness, as “the State cannot
presume that a child and his parents are adversaries.” Santosky, 455 US at 760. Rather,
only “[a]fter the State has established parental unfitness . . . [may] the court . . . assume at
the dispositional stage that the interests of the child and the natural parents do diverge.”
Id.16
conducive to the juvenile’s welfare and the best interest of the state.”) (emphasis added);
Stanley, 405 US at 652-653 (“[I]f Stanley is a fit father, the State spites its own
articulated goals when it needlessly separates him from his family.”); Troxel, 530 US at
68-69 (opinion by O’Connor, J.) (“[S]o long as a parent adequately cares for . . . [his or
her] children, there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best decisions
concerning the rearing of [his or her] children.”); Santosky, 455 US at 766-767 (“[W]hile
there is still reason to believe that positive, nurturing parent-child relationships exist, the
parens patriae interest favors preservation, not severance, of natural familial bonds.”).
When a child is parented by a fit parent, the state’s interest in the child’s welfare is
perfectly aligned with the parent’s liberty interest. But when a father or mother is
erroneously deprived of his or her fundamental right to parent a child, the state’s interest
is undermined as well: “[T]he State registers no gain towards its declared goals when it
separates children from the custody of fit parents.” Stanley, 405 US at 652. In other
words, the state ordinarily12 has an equally strong interest in ensuring that a parent’s
12
Of course, when a minor faces an imminent threat of harm, the state’s interest in the
welfare of the child is paramount. In the case of an imminent threat of harm, the state
may take the child into custody without prior court authorization or parental consent.
See, e.g., Tenenbaum v Williams, 193 F3d 581, 593-594 (CA 2, 1999). And as noted in
footnote 3 of this opinion, Michigan law allows exactly that process. See MCL
712A.14a(1); MCL 712A.14b(1)(a). Requiring an imminent threat of harm for removal
is constitutionally sound: as the Second Circuit recognized in Tenenbaum, “ ‘[T]he mere
“possibility” of danger is not enough.’ ” Tenenbaum, 193 F3d at 594 (citation omitted;
alteration in original). Similarly, upon the authorization of a child protective petition, the
trial court may order temporary placement of the child into foster care pending
adjudication if the court finds that placement in the family home would be contrary to the
welfare of the child. MCR 3.965(B)(12)(b) and (C). Because our holding only reaches
the court’s exercise of its postadjudication dispositional authority, it should not be
17
fitness, or lack thereof, is resolved before the state interferes with the parent-child
relationship. Thus, the probable value of extending the right to an adjudication to each
parent in a child protective proceeding benefits both public and private interests alike.
There is no doubt that requiring adjudication of each parent will increase the
burden on the state in many cases. But there is also little doubt that an adjudication
would significantly reduce any risk of a parent’s erroneous deprivation of the parent’s
right to parent his or her children. The trial is the only fact-finding phase regarding
parental fitness, and the procedures afforded respondent parents are tied to the allegations
of unfitness contained in the petition. As this Court has stated, “The procedures used in
adjudicative hearings protect the parents from the risk of erroneous deprivation” of their
parental rights. Brock, 442 Mich at 111.13
Dispositional hearings simply do not serve this same function. At the
dispositional phase, the court is concerned only with what services and requirements will
be in the best interests of the children. There is no presumption of fitness in favor of the
unadjudicated parent.14 See MCL 712A.18f. The procedures afforded parents during the
interpreted as preventing courts from ordering temporary foster-care placement pursuant
to MCR 3.965(B)(12)(b) and (C).
13
The risk of error is not limited to the erroneous interference with a parent’s right to
parent. Often times, pursuant to the one-parent doctrine, services will be ordered for the
unadjudicated parent. Absent some fact-finding regarding that parent’s alleged neglectful
or abusive conduct, however, the DHS cannot reasonably be expected to formulate an
individualized plan, resulting in unadjudicated parents being ordered to comply with
potentially unnecessary and costly service plans.
14
Ideally, the removal of the child at the dispositional hearing would always involve a
finding that the child’s parents are unfit, as the dissent suggests. The statutes and court
rules governing the dispositional phase, however, simply do not demand any fitness
18
dispositional phase are not related to the allegations of unfitness because the question a
court is answering at a dispositional hearing assumes a previous finding of parental
unfitness.
While extending the right to an adjudication15 to all parents before depriving them
of the right to direct the care, custody, and control of their children will impose additional
burdens on the DHS, those burdens do not outweigh the risks associated with depriving a
parent of that right without any determination that he or she is unfit, as the one-parent
doctrine allows. Thus, consideration of the procedures afforded parents at the
dispositional phase in light of the Eldridge factors requires us to reject the DHS’s primary
argument.
determination. And because the “[t]he court may order compliance with all or part of the
case service plan and may enter such orders as it considers necessary in the interest of the
child,” MCR 3.973(F)(2), the one-parent doctrine results in the unadjudicated parent’s
rights being subordinated to the court’s best-interest determination.
15
The dissent suggests that we have found a constitutional right to a jury trial in child
protective proceedings. This misunderstands our opinion, as we have found no such
constitutional right. Rather, we simply hold that due process requires a specific
adjudication of a parent’s unfitness and that the one-parent doctrine is unconstitutional
because it deprives unadjudicated parents of this right. The right to a jury is granted by
statute. MCL 712A.17(2) (“Except as otherwise provided in this subsection, in a hearing
other than a criminal trial under this chapter, a person interested in the hearing may
demand a jury of 6 individuals, or the court, on its own motion, may order a jury of 6
individuals to try the case.”). Because Laird is constitutionally entitled to a fitness
hearing, MCL 712A.17(2) affords him the statutory right to demand a jury because a
parental-fitness hearing qualifies as a noncriminal hearing under the juvenile code.
We express no opinion about whether the jury guarantee in MCL 712A.17(2) is
constitutionally required.
19
We also find unpersuasive the DHS’s position that adjudication of one parent
offers sufficient process to the other parent. An unadjudicated parent is not entitled to
contest any allegations made against him or her at the other parent’s adjudication hearing
because the unadjudicated parent is not a party to that proceeding. While an
unadjudicated parent can hope that the respondent parent is willing to vigorously contest
the allegations made in the petition, as the facts here demonstrate, the unadjudicated
parent will often be disappointed. The respondent parent may enter a plea, as is his or her
right, or may choose not to defend the allegations as vigorously as the unadjudicated
parent would prefer. Moreover, as a nonparty to those proceedings, it is difficult to see
how an unadjudicated parent could have standing to appeal any unfavorable ruling.
We find similarly unconvincing the argument that the state is relieved of its initial
adjudication burden because unadjudicated parents may have the opportunity to have
their parental rights restored during the dispositional phase, if the unadjudicated parents
have complied with the case services plan or court orders, or both, during the
dispositional phase.16 The DHS’s argument puts the plow before the mule. The
possibility of a fix at the back end is not sufficient to justify a lack of process at the front
16
For example, the trial court must order the child returned home at the permanency
planning hearing unless the court determines that he or she is likely to be harmed if
placed with the parent. MCL 712A.19a(1); MCR 3.976(E)(2). According to the dissent,
a decision not to return the child to the parent’s home necessarily entails a determination
that the unadjudicated parent is unfit, thus ensuring that fit parents are not deprived of
custody. What the dissent fails to recognize, however, is that there is no similar
requirement during the earlier dispositional hearings, see MCR 3.975, and that the
unadjudicated parent will have to wait up to a year after the child’s removal before the
permanency planning hearing takes place, see MCL 712A.19a(1); MCR 3.976(E)(2).
20
end. Rather, the state must adjudicate a parent’s fitness before interfering with his or her
parental rights. Stanley, 405 US at 658. The arguments made by the DHS echo an
argument the state of Illinois made in Stanley: because Stanley might have been able to
regain custody of his children as a guardian or through adoption proceedings, no harm
was done. Id. at 647. The Court disagreed:
This Court has not . . . embraced the general proposition that a
wrong may be done if it can be undone. Surely, in the case before us, if
there is a delay between the doing and the undoing [Stanley] suffers from
the deprivation of his children, and the children suffer from uncertainty and
dislocation. [Id. (citation omitted).]
The same is true here. The state cannot deprive an unadjudicated parent of his or her
constitutional parental rights simply because those rights may be restored at some future
date. The Constitution demands more.17
B. MOOTNESS
Finally, we decline the DHS’s invitation to dismiss this case as moot because
Laird is currently incarcerated for violating federal drug-trafficking laws. An
incarcerated parent can exercise the constitutional right to direct the care of his or her
children while incarcerated, and Laird has tried to do just that.18 For example, an
17
Because we hold that the one-parent doctrine violates the due process rights of
unadjudicated parents, we need not consider Laird’s argument that the doctrine also
violates the Equal Protection Clause.
18
See, e.g., In re Weldon, 397 Mich 225, 296; 244 NW2d 827 (1976) (“Some parents,
however, because of illness, incarceration, employment or other reason, entrust the care
of their children for extended periods of time to others. This they may do without
interference by the state as long as the child is adequately cared for.”) (opinion by LEVIN,
J.), overruled in part on other grounds by Bowie v Arder, 441 Mich 23, 47; 490 NW2d
568 (1992); In re Curry, 113 Mich App 821, 826-827; 318 NW2d 567 (1982) (“Until
21
incarcerated parent can choose who will care for his children while he is imprisoned. In
re Mason, 486 Mich at 161 n 11 (“Michigan traditionally permits a parent to achieve
proper care and custody through placement with a relative.”). At several times during the
proceedings below, Laird requested that the children be placed with his mother, the
children’s parental grandmother. As long as the children are provided adequate care,
state interference with such decisions is not warranted. As a result, Laird’s complaint is
not moot.
IV. CONCLUSION
We recognize that the state has a legitimate—and crucial—interest in protecting
the health and safety of minor children. That interest must be balanced, however, against
the fundamental rights of parents to parent their children. Often, these considerations are
not in conflict because “there is a presumption that fit parents act in the best interests of
their children.” Troxel, 530 US at 68 (opinion by O’Connor, J.). When the state is
concerned that neither parent should be entrusted with the care and custody of their
children, the state has the authority—and the responsibility—to protect the children’s
safety and well-being by seeking an adjudication against both parents. In contrast, when
the state seeks only to deprive one parent of the right to care, custody and control, the
state is only required to adjudicate that parent. In this case, for example, there was no
there is a demonstration that the person entrusted with the care of the child by that child’s
parent is either unwilling or incapable of providing for the health, maintenance, and well
being of the child, the state should be unwilling to interfere.”).
22
constitutional or jurisdictional impediment to disrupting the parental rights of Sanders,
who was afforded the right to a determination of fitness.
Adjudication protects the parents’ fundamental right to direct the care, custody,
and control of their children, while also ensuring that the state can protect the health and
safety of the children. Admittedly, in some cases this process may impose a greater
burden on the state than would application of the one-parent doctrine because
“[p]rocedure by presumption is always cheaper and easier than individualized
determination.” Stanley, 405 US at 656-657. But as the United States Supreme Court
made clear in Eldridge, constitutional rights do not always come cheap. The Constitution
does not permit the state to presume rather than prove a parent’s unfitness “solely
because it is more convenient to presume than to prove.” Stanley, 405 US at 658.
We accordingly hold that due process requires a specific adjudication of a parent’s
unfitness before the state can infringe the constitutionally protected parent-child
relationship. In doing so, we announce no new constitutional right. Rather, we affirm
that an old constitutional right—a parent’s right to control the care, custody, and control
of his or her children—applies to everyone, which is the very nature of constitutional
rights. Because the one-parent doctrine allows the court to deprive a parent of this
fundamental right without any finding that he or she is unfit, it is an unconstitutional
violation of the Due Process Clause of the Fourteenth Amendment. We therefore overrule
23
In re CR, vacate the order of the trial court, and remand this case to the trial court for
further proceedings consistent with this opinion.
Bridget M. McCormack
Robert P. Young
Michael F. Cavanagh
Mary Beth Kelly
Brian K. Zahra
24
STATE OF MICHIGAN
SUPREME COURT
____________________________________
In re SANDERS, Minors.
____________________________________
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v No. 146680
LANCE LAIRD,
Respondent-Father-Appellant,
and
TAMMY SANDERS,
Respondent-Mother.
MARKMAN, J. (dissenting).
The issue here, as it generally is in constitutional cases, is whether the Legislature
has acted in an unconstitutional manner by enacting statutes that for many years have
provided the underpinnings for the so-called one-parent doctrine.1 I do not believe that it
1
Even this threshold statement of the constitutional issue in this case separates the
majority opinion and this opinion. The majority opinion concentrates almost exclusively
on the Court of Appeals’ decision in In re CR, 250 Mich App 185; 646 NW2d 506
(2002), and gives little attention to connecting this analysis to the statutes and court rules
that underlie CR.
has. For that reason, I respectfully dissent from the majority opinion’s decision to vacate
the order of the trial court, overrule In re CR, 250 Mich App 185; 646 NW2d 506 (2002),
and hold that the one-parent doctrine, which has been a part of our statutory scheme for
more than 70 years, is now unconstitutional under the Due Process Clause of the
Fourteenth Amendment. Instead, I would affirm the trial court and conclude that CR
correctly held that the one-parent doctrine, as well as the statutes and court rules on
which the doctrine is grounded, remain constitutional. The Legislature has adequately
protected the due process rights of a parent of an abused or neglected child (a child whose
other parent has already been adjudicated unfit) by requiring a hearing on the parent’s
fitness before the state can interfere with this parent’s parental rights, and appellant here
has been reasonably determined to be unfit after several such hearings.
I. FACTS AND HISTORY
Appellant Lance Laird and Tammy Sanders were never married, but are the
parents of two young boys-- P (born in 2010) and C (born in 2011). Soon after the
youngest boy was born with drugs in his system, the DHS removed the child from
Sanders’s custody and placed him with Laird, where the other child was already living.2
However, a few weeks later when Laird himself tested positive for cocaine, the DHS
removed the children from his custody and placed them with their paternal aunt. Sanders
entered a no-contest plea to allegations of abuse and neglect. The trial court applied the
one-parent doctrine to continue the children’s placement with their aunt and order Laird
to comply with a service plan, including psychological evaluation, parenting classes,
2
Laird and the children lived with Laird’s mother.
2
substance abuse assessment, random drug screens, maintenance of housing and
employment, and terms of probation stemming from a previous domestic violence
conviction.
Laird filed a motion seeking immediate placement of his children with him and
challenging the one-parent doctrine. Following a hearing at which several witnesses,
including Laird himself, testified, the trial court, relying on CR, denied this motion, and
the Court of Appeals denied leave to appeal for lack of merit. In re Sanders Minors,
unpublished order of the Court of Appeals, entered January 18, 2013 (Docket No.
313385). This Court granted leave to appeal and directed the parties to address “whether
the application of the one-parent doctrine violates the due process or equal protection
rights of unadjudicated parents.” In re Sanders, 493 Mich 959 (2013).
II. STANDARD OF REVIEW
Questions involving the interpretation of statutes and court rules are reviewed de
novo. People v Buie, 491 Mich 294, 304; 817 NW2d 33 (2012). Questions of
constitutional law are also reviewed de novo. Id. It is well established that
“[s]tatutes are presumed to be constitutional, and courts have a duty to
construe a statute as constitutional unless its unconstitutionality is clearly
apparent.” Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003).
“We exercise the power to declare a law unconstitutional with extreme
caution, and we never exercise it where serious doubt exists with regard to
the conflict.” Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174
(2004). “ ‘Every reasonable presumption or intendment must be indulged
in favor of the validity of an act, and it is only when invalidity appears so
clearly as to leave no room for reasonable doubt that it violates some
provision of the Constitution that a court will refuse to sustain its
validity.’ ” Id. at 423, quoting Cady v Detroit, 289 Mich 499, 505; 286 NW
805 (1939). Therefore, “the burden of proving that a statute is
unconstitutional rests with the party challenging it,” In re Request for
Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1,
3
11; 740 NW2d 444 (2007) . . . . “[W]hen considering a claim that a statute
is unconstitutional, the Court does not inquire into the wisdom of the
legislation.” Taylor, 468 Mich at 6. [In re Request for Advisory Opinion
Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307-308; 806
NW2d 683 (2011) (second alteration in original).]
“[W]e interpret court rules using the ‘same principles that govern the interpretation of
statutes,’ ” Buie, 491 Mich at 304, and therefore court rules, like statutes, are presumed to
be constitutional.3 (Citation omitted.)
III. ANALYSIS
A. THE ONE-PARENT DOCTRINE
Child-protective proceedings typically begin with the state filing a petition in the
trial court alleging that a parent has abused or neglected a child. MCL 712A.13a(2);
MCR 3.961. Then comes the adjudicative phase, in which it is determined whether the
parent abused or neglected the child as alleged in the petition and thus whether the court
has jurisdiction over the child. During this adjudicative phase, a parent can admit the
allegations, plead no contest to the allegations, or demand a trial. MCR 3.971; MCR
3.972. Once a parent has admitted the allegations or pleaded no contest, or the fact-finder
3
The majority opinion makes only the most perfunctory reference to its threshold
obligation to presume the constitutionality of statutes and court rules. Rather, it begins its
analysis by presuming that the one-parent doctrine-- a doctrine derived from both our
statutes and court rules-- is unconstitutional, as suggested by its initial observation that
“[m]erely describing the doctrine foreshadows its constitutional weakness.” The opinion
treats the one-parent doctrine as if it had been created by the Court of Appeals out of
whole cloth. Ante at 2. (“[T]he [trial] court relied on the one-parent doctrine and the
Court of Appeals’ decision in In re CR, 250 Mich App 185; 646 NW2d 506 (2002), from
which that doctrine derives.”). Nowhere, including in its ultimate holding, does the
majority opinion give serious recognition to the fact that the one-parent doctrine is
derived from statutes and court rules of this state, which explains in turn why it also gives
little recognition to the fact that these must be presumed constitutional. The positive law
of this state is largely a bystander in the majority opinion.
4
has found “evidence of abuse [or] neglect proved by a preponderance of the legally
admissible evidence presented at the adjudication, [the court has jurisdiction over the
child, and] it then proceeds to the dispositional phase of the protective proceedings.” CR,
250 Mich App at 200-201. During the dispositional phase, the court will “determine
what measures [it] will take with respect to a child,” MCR 3.973(A), and in doing so, the
court “may make orders affecting adults as in the opinion of the court are necessary for
the physical, mental, or moral well-being of [the child] under its jurisdiction,” MCL
712A.6. As this Court explained in In re Brock, 442 Mich 101, 108; 499 NW2d 752
(1993):
Child protective proceedings are generally divided into two phases:
the adjudicative and the dispositional. The adjudicative phase determines
whether the . . . court may exercise jurisdiction over the child. If the court
acquires jurisdiction, the dispositional phase determines what action, if any,
will be taken on behalf of the child.
The so-called one-parent doctrine allows a trial court to exercise jurisdiction over
a child on the basis of the adjudication of only one parent. In other words, after one
parent has been adjudicated, the court does not have to adjudicate the other parent, but
instead can proceed to the dispositional phase. It is undisputed that the Legislature
incorporated the one-parent doctrine into its statutory scheme and that this Court
similarly incorporated the doctrine into its court rules. Most notably, MCL 712A.2
provides, in pertinent part:
The court has the following authority and jurisdiction:
* * *
(b) Jurisdiction in proceedings concerning a juvenile under 18 years
of age found within the county:
5
(1) Whose parent or other person legally responsible for the care and
maintenance of the juvenile, when able to do so, neglects or refuses to
provide proper or necessary support, education, medical, surgical, or other
care necessary for his or her health or morals, who is subject to a
substantial risk of harm to his or her mental well-being, who is abandoned
by his or her parents, guardian, or other custodian, or who is without proper
custody or guardianship. . . .
* * *
(2) Whose home or environment, by reason of neglect, cruelty,
drunkenness, criminality, or depravity on the part of a parent, guardian,
nonparent adult, or other custodian, is an unfit place for the juvenile to live
in. [Emphasis added.][4]
MCL 712A.2(b) employs the singular form of “parent” and thus does not require that
both parents be adjudicated in order for the court to exercise jurisdiction over the child.5
In addition, MCL 712A.6 provides:
4
Indeed, the Legislature incorporated the one-parent doctrine into its statutory scheme as
early as 1944 when it added Chapter XIIA to the Probate Code, now codified at
MCL 712A.1 et seq. See 1944 (Ex Sess) PA 54, § 2(a)(6) (granting jurisdiction to the
court over any child under 17 years of age “[w]hose parent or other person legally
responsible for the care and maintenance of such child, when able to do so, neglects or
refuses, to provide proper or necessary support, education as required by law, medical,
surgical or other care necessary for his health, morals or well-being, or who is abandoned
by his parents, guardian, or other custodian, or who is otherwise without proper custody
or guardianship”) (emphasis added).
5
The majority opinion agrees that the fact that “MCL 712A.2(b)(1) refers singularly to
‘parent’ . . . is consistent with the unremarkable idea that courts may assume jurisdiction
over a child on the basis of the adjudication of one parent.” Ante at 13 n 8 (emphasis
added); see also ante at 9 (“[O]nce there has been an adjudication, either by trial or by
plea, the court has jurisdiction over the child regardless of whether one or both parents
have been adjudicated unfit.”). However, this assumption of jurisdiction over the child is
not quite as “unremarkable” as the majority opinion seems to believe, at least for
purposes of the instant case, since MCL 712A.6 provides that once the court has
jurisdiction over the child, it also “has jurisdiction over adults . . . and may make orders
affecting adults as in the opinion of the court are necessary for the physical, mental, or
6
The court has jurisdiction over adults as provided in this chapter and
as provided in chapter 10A of the revised judicature act of 1961, 1961 PA
236, MCL 600.1060 to 600.1082, and may make orders affecting adults as
in the opinion of the court are necessary for the physical, mental, or moral
well-being of a particular juvenile or juveniles under its jurisdiction.
However, those orders shall be incidental to the jurisdiction of the court
over the juvenile or juveniles. [Emphasis added.]
Accordingly, once the court adjudicates one parent, pursuant to MCL 712A.2(b) the
court can exercise jurisdiction over the child and, pursuant to MCL 712A.6, in exercising
that jurisdiction, the court can “make orders affecting adults as in the opinion of the court
are necessary for the physical, mental, or moral well-being” of the child. This makes
sense because if a child is being abused or neglected, it is imperative that a court have the
power to immediately intervene and to intervene effectively. “[A] juvenile court must be
afforded the flexibility to assume jurisdiction over a child based on findings of
maltreatment against one parent. This authority is essential to ensuring that the court has
the ability to issue orders to remedy the abuse or neglect by the offending parent.”
Sankaran, Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the
Constitutional Rights of Nonoffending Parents, 82 Temp L Rev 55, 84 (2009).
The one-parent doctrine has similarly been incorporated into the Michigan Court
Rules. For example, MCR 3.973(A) provides:
A dispositional hearing is conducted to determine what measures the
court will take with respect to a child properly within its jurisdiction and,
when applicable,[6] against any adult,[7] once the court has determined
moral well-being of a particular juvenile or juveniles under its jurisdiction.” “Adults”
presumably includes the parents of the child over whom jurisdiction has been assumed.
6
The majority opinion contends that
7
following trial, plea of admission, or plea of no contest that one or more of
the statutory grounds alleged in the petition are true. [Emphasis added.]
In addition, MCR 3.973(F)(2) provides:
The court shall not enter an order of disposition until it has examined
the case service plan as provided in MCL 712A.18f. The court may order
compliance with all or part of the case service plan and may enter such
orders as it considers necessary in the interest of the child.
Accordingly, as the Court of Appeals explained in CR, 250 Mich App at 202-203, 205:
[O]nce the family court acquires jurisdiction over the children, MCR
[3.973(A)] authorizes the family court to hold a dispositional hearing “to
determine [what] measures [the court will] take[] . . . against any
adult . . . .” MCR [3.973(F)(2)] then allows the family court to “order
compliance with all or part of the case service plan and may enter such
orders as it considers necessary in the interest of the child.” Consequently,
after the family court found that the children involved in this case came
within its jurisdiction on the basis of [the adjudicated parent’s] no-contest
the phrase “when applicable” [in MCR 3.973(A)] can reasonably—and
constitutionally—be interpreted to mean that when the person meeting the
definition of “any adult” is a presumptively fit parent, the court’s authority
during the dispositional phase is limited by the fact that the state must
overcome the presumption of parental fitness by proving the allegations in
the petition.
While I agree that the state must certainly overcome the presumption of parental fitness, I
do not believe that the state must do this by “proving the allegations in the petition.”
Instead, as discussed more fully later, the state can overcome the presumption by proving
that the parent abused or neglected the child regardless of whether such allegations were
contained in the petition. I do not believe that the language “when applicable” suggests
anything to the contrary. However, even if it did, the pertinent statute, MCL 712A.6,
indisputably cannot be interpreted in this way because it does not contain the phrase
“when applicable” and it very clearly states that “[t]he court has jurisdiction over
adults . . . and may make orders affecting adults as in the opinion of the court are
necessary for the physical, mental, or moral well-being of a particular juvenile or
juveniles under its jurisdiction.”
7
We do not have to decide in this case the breadth of the language “any adult” because
no one disputes that it applies to Laird.
8
plea and supporting testimony at the adjudication, the family court was able
to order [the unadjudicated parent] to submit to drug testing and to comply
with other conditions necessary to ensure that the children would be safe
with him even though he was not a respondent in the proceedings. This
process eliminated the [petitioner’s] obligation to allege and demonstrate
by a preponderance of legally admissible evidence that [the unadjudicated
parent] was abusive or neglectful within the meaning of MCL 712A.2(b)
before the family court could enter a dispositional order that would control
or affect his conduct. . . .
* * *
As we have explained, the court rules simply do not place a burden
on a petitioner . . . to file a petition and sustain the burden of proof at an
adjudication with respect to every parent of the children involved in a
protective proceeding before the family court can act in its dispositional
capacity. The family court’s jurisdiction is tied to the children, making it
possible, under the proper circumstances, to terminate parental rights even
of a parent who, for one reason or another, has not participated in the
protective proceeding. [Some emphasis omitted.][8]
8
The majority opinion “reject[s]” the Court of Appeals’ interpretation of MCL 712A.6
because its interpretation “would seemingly grant trial courts unfettered authority to enter
dispositional orders . . . .” Ante at 13-14. I do not believe that MCL 712A.6, or the Court
of Appeals’ interpretation of it, grants courts any such authority. Rather, it grants courts
the far more limited power to “make orders affecting adults as in the opinion of the court
are necessary for the physical, mental, or moral well-being of a particular juvenile or
juveniles under its jurisdiction.” MCL 712A.6 (emphasis added). Contrary to the
majority opinion’s contention, such an order can in no way be said to “impermissibly
interfere[] with a parent’s constitutional right to direct the care and custody of his or her
child,” ante at 14, as a parent’s constitutional rights with respect to his or her child
have never been regarded as absolute, in particular not with regard to abusive and
neglectful parents, Stanley v Illinois, 405 US 645, 652; 92 S Ct 1208; 31 L Ed 2d 551(1972) (“Neglectful parents may be separated from their children.”). As discussed in
more detail later, it would never be “necessary” to enter an order that infringes on a
parent’s “rights” unless that parent has been determined to be unfit. Thus, in enacting
MCL 712A.6, which only allows the court to enter orders that infringe on an unfit
parent’s “rights,” the Legislature manifestly did not grant courts any “unfettered
authority” to “impermissibly interfere[] with a parent’s constitutional right[s] . . . .” Ante
at 13-14.
9
Laird concedes and the majority opinion agrees that the court can exercise
jurisdiction over a child on the basis of the adjudication of only one parent. Accordingly,
Laird concedes and the majority opinion again agrees that the trial court had jurisdiction
over the children at issue here because their mother had entered a no-contest plea to the
allegations in the amended petition. See ante at 13 n 8 (“[T]he trial court properly
assumed jurisdiction over the children based on Sanders’s plea.”). However, Laird
argues and the majority opinion agrees that the court violated his due process rights by
relying on the one-parent doctrine to enter an order taking away his children and directing
him to comply with a service plan without first adjudicating him as unfit. Although the
Court of Appeals has addressed this issue many times and has consistently held that the
one-parent doctrine does not violate due process, this Court has not yet addressed the
issue. See, e.g., In re Slater/Weimer, unpublished opinion of the Court of Appeals, issued
March 25, 2014 (Docket No. 317132), p 2 (opinion by MARKEY, J.); In re Farris,
unpublished opinion per curiam of the Court of Appeals, issued August 8, 2013 (Docket
Nos. 311967, 312193, and 312194), pp 5-6;9 In re Mays, unpublished opinion per curiam
of the Court of Appeals, issued December 6, 2012 (Docket No. 309577), p 4 (Mays II);10
In re Rohmer, unpublished opinion per curiam of the Court of Appeals, issued August 14,
2012 (Docket No. 308745), p 3; In re Camp, unpublished memorandum opinion of the
9
This Court is currently holding an application for leave to appeal in Farris in abeyance
pending the decision in this case. In re Farris, 838 NW2d 147 (Mich, 2013).
10
In In re Mays, 493 Mich 945 (2013) (Mays II), this Court denied leave to appeal on the
basis of mootness because the parents had reached a consent agreement regarding joint
custody of the children.
10
Court of Appeals, issued May 9, 2006 (Docket No. 265301), lv den 476 Mich 853(2006); In re Church, unpublished opinion per curiam of the Court of Appeals, issued
April 11, 2006 (Docket Nos. 263541 and 265112), lv den 475 Mich 899 (2006).11 This
Court expressed an interest in addressing the constitutionality of the one-parent doctrine
in In re Mays, 490 Mich 993, 994 n 1 (2012) (Mays I), stating:
The constitutionality of the “one parent doctrine” is obviously a
jurisprudentially significant issue and one which this Court will
undoubtedly soon be required to address given the widespread application
of this doctrine.
However, this Court did not address the issue in Mays I because the appellant-father had
failed to preserve the issue in the trial court or the Court of Appeals. Id.B. DUE PROCESS
The Fourteenth Amendment provides that no state shall “deprive any person of
life, liberty, or property, without due process of law[.]” US Const, Am XIV, § 1. “It is
well established that parents have a significant interest in the companionship, care,
custody, and management of their children,” and “[t]his interest has been characterized as
an element of ‘liberty’ to be protected by due process.” Brock, 442 Mich at 109. Indeed,
“[t]he liberty interest at issue in this case—the interest of parents in the care, custody, and
control of their children—is perhaps the oldest of the fundamental liberty interests
recognized by this Court.” Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed
11“Nearly every state” has adopted the one-parent doctrine, Sankaran, 82 Temp L Rev at
57, and this “near-universal approach,” id., has been upheld against similar constitutional
challenges in other states. See, for example, In re AR, 330 SW3d 858 (Mo App, 2011);
In re CR, 108 Ohio St 3d 369; 843 NE2d 1188 (2006); In re Amber G, 250 Neb 973; 554
NW2d 142 (1996).
11
2d 49 (2000) (opinion by O’Connor, J.).12 And this interest “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).
“Where procedural due process must be afforded because a ‘liberty’ or ‘property’
interest is within the Fourteenth Amendment’s protection, there must be determined
‘what process is due’ in the particular context.” Smith v Org of Foster Families for
Equality & Reform, 431 US 816, 847; 97 S Ct 2094; 53 L Ed 2d 14 (1977). “ ‘ “[D]ue
process,” unlike some legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances.’ ” Mathews v Eldridge, 424 US 319, 334; 96
S Ct 893; 47 L Ed 2d 18 (1976), quoting Cafeteria & Restaurant Workers Union v
McElroy, 367 US 886, 895; 81 S Ct 1743; 6 L Ed 2d 1230 (1961). Instead, “ ‘[d]ue
process is flexible and calls for such procedural protections as the particular situation
demands.’ ” Smith, 431 US at 848, quoting Morrissey v Brewer, 408 US 471, 481; 92 S
Ct 2593; 33 L Ed 2d 484 (1972). “ ‘[T]he very nature of due process negates any concept
of inflexible procedures universally applicable to every imaginable situation’ . . . .”
Stanley v Illinois, 405 US 645, 650; 92 S Ct 1208; 31 L Ed 2d 551 (1972), quoting
Cafeteria Workers, 367 US at 895. “It is true that ‘[b]efore a person is deprived of a
protected interest, he must be afforded opportunity for some kind of a hearing, “except
for extraordinary situations where some valid governmental interest is at stake that
12
In Troxel, 530 US at 72-73 (opinion by O’Connor, J.), the Court held that
Washington’s nonparental visitation statute was unconstitutional because it “infringe[d]
on the fundamental right of parents to make child rearing decisions simply because a state
judge believes a ‘better’ decision could be made.”
12
justifies postponing the hearing until after the event.” ’ ” Smith, 431 US at 848, quoting
Bd of Regents of State Colleges v Roth, 408 US 564, 570 n 7; 92 S Ct 2701; 33 L Ed 2d
548 (1972) (citation omitted). “But the hearing required is only one ‘appropriate to the
nature of the case.’ ” Smith, 431 US at 848, quoting Mullane v Central Hanover Bank &
Trust Co, 339 US 306, 313; 70 S Ct 652; 94 L Ed 865 (1950). The following factors
should generally be considered when determining “what process is due”:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail. [Mathews, 424 US at 335.]
C. THE ONE-PARENT DOCTRINE AND DUE PROCESS
1. PRIVATE INTEREST
The first factor to be considered is “the private interest that will be affected by the
official action[.]” Id. “The private interest here, that of a man in the children he has sired
and raised, undeniably warrants deference and, absent a powerful countervailing interest,
protection.” Stanley, 405 US at 651. “It is plain that the interest of a parent in the
companionship, care, custody, and management of his or her children ‘come[s] to this
Court with a momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements.’ ” Id., quoting Kovacs v Cooper,
336 US 77, 95; 69 S Ct 448; 93 L Ed 513 (1949) (Frankfurter, J., concurring) (alteration
in original). “[T]here is a presumption that fit parents act in the best interests of their
children.” Troxel, 530 US at 68 (opinion by O’Connor, J.). “Accordingly, so long as a
parent adequately cares for his or her children (i.e., is fit), there will normally be no
13
reason for the State to inject itself into the private realm of the family to further question
the ability of that parent to make the best decisions concerning the rearing of that parent’s
children.” Id. at 68-69.
2. THE RISK OF ERRONEOUS DEPRIVATION OF AN INTEREST
The next factor to be considered is “the risk of an erroneous deprivation of such
interest through the procedures used . . . .” Mathews, 424 US at 335. “The extent to
which procedural due process must be afforded the recipient is influenced by the extent to
which he may be condemned to suffer grievous loss.” Santosky, 455 US at 758 (citations
and quotation marks omitted).13 “[T]he degree of potential deprivation that may be
created by a particular decision is a factor to be considered in assessing the validity of
any administrative decisionmaking process.” Mathews, 424 US at 341. “ ‘[T]he possible
length of wrongful deprivation of . . . benefits [also] is an important factor in assessing
the impact of official action on the private interests.’ ” Id. (citation omitted) (alteration in
original).
With regard to this factor, it is important to remember that the issue we address in
the instant case concerns the propriety of a parent of an abused or neglected child (a child
whose other parent has already been adjudicated as unfit) being deprived of the
adjudicative phase of a child-protective proceeding. We are not addressing a criminal
proceeding, and we are not addressing a termination-of-parental-rights proceeding.
“Child protective proceedings are not criminal proceedings.” Brock, 442 Mich at 107.
13
In Santosky, 455 US at 768-769, the Court held that while applying a “fair
preponderance of the evidence” standard in a parental-rights termination proceeding does
not satisfy due process, applying a “clear and convincing evidence” standard does.
14
“The purpose of child protective proceedings is the protection of the child . . . .” Id.“The juvenile code is intended to protect children from unfit homes rather than to punish
their parents.” Id. at 108. The adjudicative phase only determines whether the trial court
has jurisdiction over the child. In Brock, 442 Mich at 115, this Court described the
adjudicative phase as the “initial phase wherein the court acquires jurisdiction in order to
attempt to alleviate the problems in the home so that the children and the parents can be
reunited . . . .”
The degree of interference with the parent’s rights over the child after a finding
that jurisdiction exists is largely dependent on the circumstances. As this Court has
recognized, “[u]pon a finding of jurisdiction, the [family] court has several options, one
of which is to return the children to their parents. Not every adjudicative hearing results
in removal of custody.” Id. at 111.14 Simply put, a finding of jurisdiction does not
necessarily, or immediately, foreclose the parent’s rights to his or her child. “Moreover,
in order to permanently terminate respondents’ parental rights, further hearings would be
required, and the statutory elements for termination must be proven by clear and
convincing evidence.” Id. at 111-112.
“[T]he fairness and reliability of the existing . . . procedures” must also be
considered. Mathews, 424 US at 343. As the Court of Appeals explained in Mays II,
unpub op at 3-5:
The procedures outlined by the Juvenile Code and the court rules
protect a parent’s due process rights. They permit the court to issue an
order to take a child into custody when a judge or referee finds from the
14
In Brock, 442 Mich at 110, this Court held that due process does not require that a
parent be given the opportunity to cross-examine the child during the adjudicative phase.
15
evidence “reasonable grounds to believe that conditions or surroundings
under which the child is found are such as would endanger the health,
safety, or welfare of the child and that remaining in the home would be
contrary to the welfare of the child.” MCR 3.963(B)(1). Once the child is
taken into custody, the parent must be notified and advised “of the date,
time, and place of the preliminary hearing,” which is to be held within 24
hours after the child has been taken into custody, and a petition is to be
prepared and submitted to the court. MCR 3.921(B)(1); MCR 3.963(C);
MCR 3.965(A)(1). If the child is in protective custody when the petition is
filed, the procedures afforded at the preliminary hearing provide due
process to the respondent-parents. They are informed of the charges
against them and the court may either release the child to the respondent-
parents or order alternative placement. MCR 3.965(B)(4) and (12)(b).
Before ordering alternative placement, “the court shall receive evidence,
unless waived, to establish that the criteria for placement . . . are present.
The respondent shall be given an opportunity to cross-examine witnesses,
subpoena witnesses, and to offer proof to counter the admitted evidence.”
MCR 3.965(C)(1). Thus, the respondent-parents are given notice of the
proceedings and an opportunity to be heard before the child can remain in
protective custody.
For the court to continue the child in alternative placement and
“exercise its full jurisdiction authority,” it must hold an adjudicatory
hearing at which the factfinder determines whether the child comes within
the provisions of [MCL 712A.2(b)]. . . . Once jurisdiction is obtained, the
case proceeds to disposition “to determine what measures the court will
take with respect to a child properly within its jurisdiction and, when
applicable, against any adult . . . .” MCR 3.973(A).
* * *
The essence of respondent’s argument on appeal is that the one
parent doctrine violates the nonadjudicated parent’s due process rights by
depriving him of custody of his children without a determination that he is
an unfit custodian, as would be established at the adjudicatory hearing.
Respondent’s argument conflates the adjudicatory and dispositional phases
of the proceedings. The adjudicatory phase determines whether a child
requires the protection of the court because he or she comes within the
parameters of [MCL 712A.2(b)]. If the child comes within the scope of
[MCL 712A.2(b)], the trial court acquires jurisdiction and “can act in its
dispositional capacity.” It is at the dispositional hearing that the court
determines “what measures [it] will take with respect to a child properly
within its jurisdiction[.]” MCR 3.973(A). It can issue a warning to the
16
parents and dismiss the petition, MCL 712A.18(1)(a), place the child in the
home of a parent or a relative under court supervision, MCL 712A.18(1)(b),
or commit the child to the DHS for placement, MCL 712A.18(1)(d) and (e).
Before the court determines what action to take, the DHS must prepare a
case service plan, MCL 712A.18f(2), and the court must “consider the case
service plan and any written or oral information concerning the child from
the child’s parent, guardian, custodian, foster parent, child caring
institution, relative with whom the child is placed, lawyer-guardian ad
litem, attorney, or guardian ad litem; and any other evidence offered,
including the appropriateness of parenting time, which information or
evidence bears on the disposition.” MCL 712A.18f(4). See, also, MCR
3.973(E)(2) and (F)(2). If the DHS recommends against placing the child
with a parent, it must “report in writing what efforts were made to prevent
removal, or to rectify conditions that caused removal, of the child from the
home,” MCR 3.973(E)(2), and identify the likely harm to the child if
separated from or returned to the parent. MCL 712A.18f(1)(c) and (d).
The parent is entitled to notice of the dispositional hearing, MCR
3.921(B)(1)(d), and the parties are entitled to an opportunity “to examine
and controvert” any reports offered to the court and to “cross-examine
individuals making the reports when those individuals are reasonably
available.” MCR 3.973(E)(3).
If the child is removed from the home and remains in alternative
placement, the court must hold periodic review hearings to assess the
parents’ progress with services and the extent to which the child would be
harmed if he or she remains separated from, or is returned to, the parents.
MCL 712A.19(3) and (6); MCR 3.975(A) and (C). The court must
“determine the continuing necessity and appropriateness of the child’s
placement” and may continue that placement, change the child’s placement,
or return the child to the parents. MCL 712A.19(8); MCR 3.975(G).
Before making a decision, the court must “consider any written or oral
information concerning the child from the child’s parent, guardian, legal
custodian, foster parent, child caring institution, or relative with whom a
child is placed, in addition to any other relevant and material evidence at
the hearing.” MCR 3.975(E). If the child remains out of the home and
parental rights have not been terminated, the court must hold a permanency
planning hearing within 12 months from the time the child was removed
from the home and at regular intervals thereafter. MCL 712A.19a(1); MCR
3.976(B)(2) and (3). The purpose of the hearing is to assess the child’s
status “and the progress being made toward the child’s return home[.]”
MCL 712A.19a(3). At the conclusion of the hearing, the court “must order
the child returned home unless it determines that the return would cause a
substantial risk of harm to the life, the physical health, or the mental well-
17
being of the child.” MCR 3.976(E)(2). See, also, MCL 712A.19a(5). In
making its determination, “[t]he court must consider any written or oral
information concerning the child from the child’s parent, guardian, legal
custodian, foster parent, child caring institution, or relative with whom a
child is placed, in addition to any other relevant and material evidence at
the hearing.” MCR 3.976(D)(2). Further, “[t]he parties must be afforded
an opportunity to examine and controvert written reports received by the
court and may be allowed to cross-examine individuals who made the
reports when those individuals are reasonably available.” Id. As with the
initial dispositional hearing, each parent is entitled to notice of the
dispositional review and permanency planning hearings and an opportunity
to participate therein. MCR 3.920(B)(2)(c); MCR 3.975(B); MCR
3.976(C).[15]
These provisions, taken together, satisfy the requirements of due
process. The parent is entitled to notice of the dispositional hearing and an
opportunity to be heard before the court makes its dispositional ruling.
When it is recommended that the child not be placed with a parent, the
court must consider whether the child is likely to be harmed if placed with
the parent, which would necessarily entail a determination regarding that
parent’s fitness as a custodial parent. Once the court determines that the
child should not be placed with the parents, it may continue the child in
alternative placement or return the child to the parents depending on the
circumstances of the parents and the child, again considering whether the
child is likely to be harmed if placed with the parent, which would
necessarily entail a determination regarding that parent’s fitness as a
custodial parent. Respondent does not contend that these procedures were
not followed here. [Emphasis added; alterations in original except those
inserting citations.][16]
15
As explained in Camp, unpub op at 2 n 1:
Respondent is additionally protected by the different standards of
proof applicable at a dispositional hearing. “The parent who has been
subject to an adjudication . . . can have [his or] her parental rights
terminated on the basis of all the relevant and material evidence on the
record, including evidence that is not legally admissible. In contrast, the
petitioner must provide legally admissible evidence in order to terminate
the rights of the parent who was not subject to an adjudication.” [Citation
omitted; alteration in original.]
16
See also Slater/Weimer, unpub op at 3 (opinion by MARKEY, J.), which explained:
18
Given the protections afforded to parents by the provisions discussed above, “the risk of
an erroneous deprivation” of a parent’s interest, if any, is minimal.
As discussed more later, I believe that I reach a different result than the majority
opinion partly because while the majority opinion only fleetingly acknowledges the
interests of the children, I believe this to be the most important interest at issue here. The
[R]espondent cannot establish an erroneous deprivation of her
liberty interest in caring for her children because before the trial court is
authorized to take further action after adjudication, a respondent is entitled
to receive additional procedural safeguards during the dispositional phase
of the proceedings. For instance, and contrary to respondent’s claims, the
adjudication phase of the proceedings does not require the trial court to
remove a child from the parent’s home. See MCL 712A.18(1)(a), (b).
And, during the dispositional phase of the proceedings, if petitioner
recommends against placing the child with her parent, petitioner “shall
report in writing what efforts were made to prevent removal, or to rectify
conditions that caused removal, of the children from the home.” MCR
3.973(E)(2). Hence, the subsequent removal of a child from her parent’s
home during the dispositional phase involves a finding that the parent is
unfit. Further, before respondent’s parental rights can be terminated, she is
entitled to a number of additional procedural protections during the
dispositional phase of the proceedings, such as dispositional review
hearings, the implementation of a case services plan, parental visitation,
and findings as to whether continued placement outside of the home is
necessary to protect the children. In re CR, 250 Mich App at 201-202. See
also MCR 3.973(F). And, a respondent is entitled to notice of all
dispositional hearings, MCR 3.921(B)(1)(d), as well as an opportunity “to
examine and controvert written reports” submitted to the trial court by
petitioner and to “cross-examine individuals making the reports when those
individuals are reasonably available,” MCR 3.973(E)(3). Further still, the
trial court is not to presume during this time that the parent is unfit. See In
re Mason, 486 Mich 142, 168; 782 NW2d 747 (2010). Therefore, because
respondents are given notice and an opportunity to be heard before the
children are placed outside of the home or parental rights are terminated,
we find that the one-parent doctrine does not violate a respondent’s right to
procedural due process. [Emphasis added.]
19
other reason we reach different results, in my opinion, is attributable to the majority
opinion’s erroneous assumptions that “[t]he [adjudication] trial is the only fact-finding
phase regarding parental fitness,” “[t]he statutes and court rules governing the
dispositional phase . . . simply do not demand any fitness determination,” and “[t]here is
no presumption of fitness in favor of the unadjudicated parent.” This is not accurate. As
addressed earlier, the statutory provisions and court rules, as they should, presume that
parents are fit and require the state to prove a parent’s unfitness before the state can
remove a child from a parent’s custody. See, for example, MCL 712A.18f(1)(c) and (d)
and (4) and MCR 3.973(F)(2), which only allow the court to remove a child from a
parent’s custody if doing so would be “necessary in the interest of the child,” after
considering the “[l]ikely harm to the child if the child were to be separated from his or
her parent” and the “[l]ikely harm to the child if the child were to be returned to his or her
parent,” and even then requires the court to specify in the order what “reasonable efforts
have been made to prevent the child’s removal from his or her home . . . .”17 In addition,
17
Laird’s counsel has authored a thoughtful article in which he proposes a “policy
solution that balances the constitutional rights of the nonoffending parent with the
interests of the child and the other parent.” Sankaran, 82 Temp L Rev at 70. The
following is his proposed solution:
My proposed solution consists of two guiding principles. First, a
juvenile court must be afforded the flexibility to assume jurisdiction over a
child based on findings of maltreatment against one parent. This authority
is essential to ensuring that the court has the ability to issue orders to
remedy the abuse or neglect by the offending parent. Second, in order to
respect the constitutional rights of the nonoffending parent, the court’s
power should be limited. While the case is ongoing, absent proof of
parental unfitness, the court must grant custodial rights to the nonoffending
parent to the satisfaction of that parent. [Id. at 84.]
20
the state must prove that a parent remains unfit in order for the state to continue depriving
a parent of his or her right to the custody of his or her child. See, for example, MCL
712A.19(6)(d) and (e) and (8), which requires the court to “determine the continuing
necessity and appropriateness of the child’s placement” after considering the “[l]ikely
harm to the child if the child continues to be separated from the child’s parent” and the
“[l]ikely harm to the child if the child is returned to the child’s parent.” See also MCL
3.975. Finally, “[a] permanency planning hearing shall be conducted to review the status
of the child and the progress being made toward the child’s return home . . . .” MCL
712A.19a(3). If “the court determines at a permanency planning hearing that the return
of the child to his or her parent would not cause a substantial risk of harm to the child’s
life, physical health, or mental well-being, the court shall order the child returned to his
or her parent.” MCL 712A.19a(5); see also MCR 3.976(E)(2).18
In my opinion, this proposed solution is fully consistent with existing Michigan law
because under that law, as discussed earlier, the court is “afforded the flexibility to
assume jurisdiction over a child based on findings of maltreatment against one parent,”
but “absent proof of parental unfitness, the court must grant custodial rights to the
nonoffending parent to the satisfaction of that parent.” Id. However, Sankaran then
proceeds to argue that a finding of unfitness would first require “the filing of a petition
against the nonoffending parent, which would then trigger all the procedural protections
available under state law.” Id. at 85. In other words, he argues that a finding of unfitness
must occur during the adjudicative phase of the proceedings, rather than during the
dispositional phase. However, neither Sankaran nor the majority opinion nor anyone else
of whom I am aware has identified any support for this proposition-- that is, the
proposition that the Constitution demands that a finding of unfitness occur during the
adjudicative phase. Once again, it is important to remember that the issue before this
Court is not whether requiring a finding of unfitness to be made during the adjudicative
phase would be a wise policy decision, only whether the Constitution requires that this
finding be made during that phase.
18
The majority opinion, although it apparently recognizes that the permanency planning
21
While I agree with the majority opinion that the state, absent exigent
circumstances,19 cannot remove a child from a parent’s custody or otherwise interfere
with a parent’s parental rights without first finding that the parent is unfit, I do not
believe that our current statutory scheme, encompassing as it does the one-parent
doctrine, allows the state to do so.20 As discussed earlier, “ ‘[s]tatutes are presumed to be
constitutional, and courts have a duty to construe a statute as constitutional unless its
unconstitutionality is clearly apparent.’ ” Advisory Opinion, 490 Mich at 307 (citation
hearing statute, MCL 712A.19a(5), requires a finding of unfitness, proceeds to state “that
there is no similar requirement during the earlier dispositional hearings . . . .” Thus, in
this regard, it fails to recognize that the statutes cited previously, MCL 712A.18f and
MCL 712A.19, include “similar requirement[s] during the earlier dispositional hearings.”
19
See MCL 712A.14a(1), which allows the state to immediately take a child into
protective custody “[i]f there is reasonable cause to believe that a child is at substantial
risk of harm or is in surroundings that present an imminent risk of harm and the child’s
removal from those surroundings is necessary to protect the child’s health and
safety . . . .” See also MCL 712A.14b(1)(a).
20
The majority opinion also argues that “[a]bsent some fact-finding regarding that
parent’s alleged neglectful or abusive conduct, . . . the DHS cannot reasonably be
expected to formulate an individualized plan, resulting in unadjudicated parents being
ordered to comply with potentially unnecessary and costly service plans.” The majority
opinion’s concern is premised on its erroneous assumption that the court can order a
parent to comply with a service plan without first considering what services are
necessary. However, MCL 712A.6 expressly states that the court “may make orders
affecting adults as in the opinion of the court are necessary for the physical, mental, or
moral well-being of [the child] under its jurisdiction.” (Emphasis added.) In addition,
MCL 712A.18f(4) states that “[t]he court may order compliance with all or any part of
the case service plan as the court considers necessary.” (Emphasis added.) Therefore,
contrary to the majority opinion’s suggestion, the trial court cannot order a parent to
comply with “unnecessary” or arbitrary service plans. Instead, the service plan must be
determined to be necessary to serve the best interests of the child, over whom jurisdiction
has already been obtained by the court. Indeed, even Laird himself does not argue that he
was ordered to comply with an “unnecessary” service plan.
22
omitted). Accordingly, if it is possible to reasonably construe statutes to avoid
unconstitutionality, it is this Court’s duty to do so. Evans Prods Co v State Bd of
Escheats, 307 Mich 506, 548; 12 NW2d 448 (1943) (“We are compelled to construe Act
No. 170, in accordance with well-defined rules of statutory construction, in such manner
as to avoid constitutional pitfalls, if this can be reasonably done within the legislative
intent.”). Because I believe it is possible to reasonably construe the statutes (as well as
the court rules) at issue here to avoid unconstitutionality, it is our obligation to do this.
See Hooper v California, 155 US 648, 657; 15 S Ct 207; 39 L Ed 297 (1895) (“The
elementary rule is that every reasonable construction must be resorted to, in order to save
a statute from unconstitutionality.”). It is entirely reasonable to construe the pertinent
statutes and court rules as requiring a finding of unfitness before the state can interfere
with parental rights.21 Although these statutes and court rules do not require this finding
21
While the majority opinion relies on its “duty to interpret [the law] as being
constitutional whenever possible” to reject the Court of Appeals’ interpretation of the law
in CR, which the majority opinion views as “grant[ing] trial courts unfettered authority to
enter dispositional orders,” it fails to give any consideration to this same “duty to
interpret [the law] as being constitutional whenever possible” when it rejects the Court of
Appeals’ interpretation of the law in Mays II, which requires a finding of unfitness before
the state can interfere with parental rights. See ante at 18 n 14 (“The [law] governing the
dispositional phase . . . simply do[es] not demand any fitness determination.”). If the
majority opinion believes that it has such a “duty,” is it truly not even reasonably possible
to interpret the law as requiring a finding of unfitness when several Court of Appeals
panels have been readily capable of doing so? If the majority opinion would apply its
“duty” with consistent force, it would be far more likely to reach the same conclusion as
the Court of Appeals that the law does not grant an “unfettered authority” to enter
dispositional orders because those orders must be “necessary for the physical, mental, or
moral well-being of [the child] under [the court’s] jurisdiction,” MCL 712A.6, and there
must be a finding of unfitness before the state can intervene because MCL
712A.18f(1)(c) and (d) and (4) and MCR 3.973(F)(2) only allow the removal of a child
from a parent’s custody where doing so is “necessary in the interest of the child,” after
23
of unfitness to be made during the adjudicative phase of the proceedings, I see nothing in
the Constitution that would require such a finding to be made during that particular
phase. Therefore, unlike the majority opinion, I do not find it necessary to strike down as
unconstitutional any of the pertinent statutes and court rules. “In assessing what process
is due in this case, substantial weight must be given to the good-faith judgments of the
individuals charged” by “we the people” to adopt fair procedures-- the Legislature-- “that
the procedures they have provided assure fair consideration . . . .” Mathews, 424 US at
349. The majority opinion, as far as I can see, does not accord any weight to the good-
faith judgments of the Legislature, and instead of presuming that the statutes and court
rules at issue are constitutional, it presumes from the very beginning the opposite, which
is yet another reason why I reach a different result.
The fairness of the procedures adopted by the Legislature is well demonstrated by
the particular facts of this case. As Laird concedes, the court properly exercised
jurisdiction over the children given the mother’s no-contest plea. At this point, the
children were placed with Laird and it was only after he tested positive for cocaine that
the children were removed from his care. In other words, Laird was not presumed unfit.
Instead, he was clearly presumed fit; otherwise the children would never have been
placed with him to begin with.22 However, Laird then proved himself to the DHS and the
considering the “[l]ikely harm to the child if the child were to be separated from his or
her parent” and the “[l]ikely harm to the child if the child were to be returned to his or her
parent,” and further require the court to specify what “reasonable efforts have been made
to prevent the child’s removal from his or her home . . . .”
22
Indeed, at oral arguments, Laird’s counsel conceded that “[t]he state did presume that
he was fit.”
24
trial court as being unfit by testing positive for cocaine. See Farris, unpub op at 7
(“Though a trial court may not presume that a parent is unfit, Farris’s conduct throughout
the course of this case demonstrated that he was not a fit parent.”) (citation omitted). It
was only at this point that the decision to place the children with Laird was reevaluated--
at the point at which the court became aware that Laird had tested positive for cocaine,
had been arrested for distributing cocaine,23 had stopped participating in random drug
screens, had been getting high with the children’s mother, and had allowed the children’s
mother to have contact with the children even though the DHS had told him not to allow
her to have such contact.24 Laird lived with his mother and there were concerns about her
as well, including significant mental health issues, as well as a history of interaction with
the DHS. There was also no available bedroom for the children at Laird’s mother’s
house, the court was aware that Laird remained on probation for domestic violence, and
the court knew that the psychologist who had conducted an evaluation of Laird had
concluded that
[i]t does not appear that Mr. Laird is a candidate for reunification with his
young children based on his violent history, the fact that he denies his entire
history of violence and takes absolutely no responsibility for it, his
substance abuse issues and his severe psychopathology. He has no insight
into his own functioning, and sees no need to change anything about
23
More recently, Laird was convicted in federal court of conspiracy to distribute more
than 500 grams of cocaine and thus is currently imprisoned and unable to take custody of
the children. However, I agree with Laird and the majority opinion that this fact does not
render this case moot because incarcerated parents still have a constitutionally protected
interest in the “management of their children.”
24
According to the mother, she was spending every night with Laird and the children.
25
himself as he believes he is good the way he is and that other people simply
need to realize what he believes.
The court considered all this information, including Laird’s own testimony, and decided
that Laird was, at least temporarily, an unfit parent. Because this determination was
made (a determination that Laird does not even contest), the trial court had the requisite
authority to place the children with someone other than Laird and to order him to comply
with a service plan in order to regain custody of his children.
Laird argues that the trial court had to “adjudicate” him in order to find him unfit,
and the majority opinion agrees with him in this regard. Laird and the majority opinion
rely heavily on Stanley, 405 US at 649, which held that “as a matter of due process of
law, Stanley was entitled to a hearing on his fitness as a parent before his children were
taken from him . . . .” Stanley was an unwed father who cared for his children until the
children’s mother died, at which point the state took his children away from him on the
basis of an Illinois law that provided that the children of unwed fathers become wards of
the state upon the death of the mother. The United States Supreme Court held that this
law violated Stanley’s right to due process because parents are entitled to a hearing on
their fitness before their children can be taken away. The state cannot simply presume
that all unwed fathers are unfit parents. However, Stanley never specified what type of
hearing must be convened. Therefore, Laird’s reliance on Stanley for the proposition that
he is constitutionally entitled to a jury trial during the adjudication phase of a child-
protective proceeding is misplaced. Stanley merely held that a hearing is required, and in
the instant case multiple hearings were held regarding the placement of Laird’s
26
children.25 The children were initially placed with him because he was presumed to be a
fit parent (unlike Stanley), but when his drug problems resurfaced, the children were
removed from his care.26 This removal, and whether this removal should continue, i.e.,
Laird’s fitness as a parent, was the subject of multiple hearings-- the November 16, 2011
preliminary hearing, the January 11, 2012 pretrial hearing, the February 7, 2012
adjudication hearing, the February 22, 2012 dispositional hearing, the May 2, 2012
dispositional review hearing, the August 22, 2012 dispositional review hearing, and the
25
Contrary to the suggestion of the majority opinion, Stanley did not hold that a parent is
entitled to a jury trial on the issue of his or her fitness as a parent. Indeed, the United
States Supreme Court has explicitly held that “trial by jury in the juvenile court’s
adjudicative stage is not a constitutional requirement.” McKeiver v Pennsylvania, 403
US 528, 545; 91 S Ct 1976; 29 L Ed 2d 647 (1971) (emphasis added). Furthermore, as
explained earlier, although Laird did not have a right to a jury trial, he did have a right to
a hearing in which he was allowed to introduce “[a]ll relevant and material evidence,”
including “any written or oral information concerning the child from the child’s parents,”
MCR 3.973(E)(2), to “examine and controvert written reports” offered to the court, MCR
3.973(E)(3), and to “cross-examine individuals making the reports when those
individuals [were] reasonably available,” id.26
As explained by the Court of Appeals in Slater/Weimer, unpub op at 3-4:
The case at bar is distinguishable because unlike in Stanley, the one-
parent doctrine does not presume that parents are unfit. Rather, the doctrine
permits the trial court to exercise jurisdiction over children because
petitioner established that the children were abused or neglected.
Furthermore, before parents are declared unfit under the one-parent
doctrine, they are . . . afforded certain procedural protections during the
dispositional phase of the proceedings. Thus, Stanley is inapposite.
Stanley merely held that a parent must be presumed to be a fit parent and that a parent is
entitled to a hearing before being deemed unfit, and that is exactly what happened in the
instant case.
27
September 5, 2012 hearing on the motion for immediate placement. As explained by the
trial court:
Here, just as in In re CR, the father has been involved in all court
proceedings since the inception of the petition. He has been provided with
appointed counsel, he has been informed of the conditions that necessitated
removal (including domestic violence and drug abuse) and he has been
offered services to address these conditions. No action has been taken to
terminate his parental rights, which would necessarily require that a
supplemental or amended petition be filed. He most certainly would be
entitled to a trial before his parental rights could be terminated. At that trial
his parental rights could be terminated only upon clear and convincing
evidence that a statutory basis exists for termination.
3. THE BURDENS OF ADDITIONAL PROCEDURAL SAFEGUARDS
“[T]he final factor to be considered is the public interest.” Mathews, 424 US at
347. “[T]he interest of the state as parens patriae is for the welfare of the child.” Brock,
442 Mich at 112-113. “[T]he State has an urgent interest in the welfare of the child . . . .”
Lassiter v Dep’t of Social Servs of Durham Co, 452 US 18, 27; 101 S Ct 2153; 68 L Ed
2d 640 (1981).27 “The state’s interest in protecting the child is aligned with the child’s
interest to be free from an abusive environment.” Brock, 442 Mich at 113 n 19. That is,
the child’s interest and the state’s interest overlap and are both relevant considerations in
the due process analysis. Given this overlap, it is difficult, if not impossible, to consider
the state’s interest without at the same time considering the child’s interest. Therefore,
both the state’s interest and the child’s interest must be taken into account when
considering this final factor. See Santosky, 455 US at 766 (“Two state interests are at
27
In Lassiter, 452 US at 31, the United States Supreme Court held that the Constitution
does not require the appointment of counsel in every proceeding to terminate parental
rights.
28
stake in parental rights termination proceedings—a parens patriae interest in preserving
and promoting the welfare of the child and a fiscal and administrative interest in reducing
the cost and burden of such proceedings.”).
“ ‘The child has an interest in the outcome of the fact-finding hearing independent
of that of the parent.’ ” Brock, 442 Mich at 113 n 19 (citation omitted).28 Children have
an interest in being protected from abusive and neglectful parents. And “the state has a
legitimate interest in protecting children who are neglected or abused by their parents.”
Mays II, unpub op at 2. “[I]n child abuse proceedings, ‘the rights of parents are a most
essential consideration, but we further recognize that the best interests and welfare of the
child outweigh all other considerations.’ ” Brock, 442 Mich at 114 (citation omitted).
Parents “have an important liberty interest in the management of their children that is
protected by due process. However, the child’s welfare is primary in child protective
proceedings.” Id. at 114-115. “[T]he paramount purpose of the juvenile section of the
Probate Code is to provide for the well-being of children.” In re Macomber, 436 Mich
28Although the majority opinion addresses at length the parental interests involved in
this case, it mentions in only the most peremptory way, in a footnote, that there is also the
child’s interest, which is an indispensable part of the constitutional due process analysis
in this case. These differing approaches go to the heart of our differing constitutional
conclusions. That is, while the majority opinion believes the most important (if not the
exclusive) constitutional interest involved is that of the parent, I respectfully believe the
most important (albeit not the exclusive) constitutional interest involved is that of the
child. In a perfect world, these interests would invariably be aligned. However, in the
highly imperfect world from which child-protective cases tend to come-- arising out of
often highly dysfunctional households-- this is not necessarily true, and in such cases, I
believe the child’s interests must be viewed as paramount, specifically the child’s interest
in the due process analysis required by Mathews, in which the child’s interests are given
consideration in conjunction with the interests of the parent.
29
386, 390; 461 NW2d 671 (1990). “One significant feature common to all child custody
cases, regardless of the procedural label, is this Court’s insistence upon the child’s best
interest prevailing as the predominant, if not sole, judicial concern.” In re Ernst, 373
Mich 337, 361; 129 NW2d 430 (1964). “ ‘We recognize the long-established rule that
the best interest of the child is of paramount importance and that it is our judicial duty to
safeguard his welfare and care.’ ” Id. at 369 (citations omitted). “The paramount
question under the law in all cases of this character is the welfare of the child. All other
considerations must yield to this one.” Id. at 370 (citations and quotation marks omitted).
Because “the risk of an erroneous deprivation” of a parent’s interest is already
minimal with the current procedures in place, the added or marginal value, if any, that
would be served by requiring both parents to be adjudicated before the court could
proceed to the dispositional phase is considerably outweighed by the added burdens that
would be imposed on the state and children. As even the majority opinion recognizes,
“[t]here is no doubt that requiring adjudication of each parent will increase the burden on
the state . . . .” See Mathews, 424 US at 335 (stating that “the probable value, if any, of
additional or substitute procedural safeguards” as well as the “fiscal and administrative
burdens that the additional or substitute procedural requirement would entail” should be
considered when determining what process is due). This is far less important, however,
than the fact that any added or marginal value of the new safeguards would be
considerably outweighed by the additional burdens on the children involved. See id. at
347 (stating that “the administrative burden and other societal costs that would be
associated with requiring [the additional or substitute procedural requirement], as a
matter of constitutional right,” should also be considered) (emphasis added). Once it has
30
been determined following a jury trial that a child has been abused or neglected by one
parent, that child should not have to wait for a secure placement until it has been
determined, following an additional jury trial, that the other parent-- most particularly one
who has actually resided in the same household as the abusing or neglecting parent-- is
implicated in the same abuse or neglect.
Abolishing the one-parent doctrine, as the majority opinion does today, will cost
the state in terms of time, financial resources, and social-services manpower because it
will now have to adjudicate both parents as unfit before it can even exercise jurisdiction
over abused and neglected children.29 However, this is the least of the burdens imposed
by judicial abolition of the doctrine. Rather, it is the additional costs and burdens that
will now be placed on abused and neglected children themselves that is most troubling.
These children, who are in the greatest need of expedited public protection, may
eventually be afforded that protection, but considerably less quickly because a parent
(again, most particularly a parent who has resided in the same household as the
adjudicated and unfit parent) will for the first time become constitutionally entitled to a
jury trial.30 Because I do not believe the latter is required by our Constitution, and
29
Once again, this jurisdictional determination is altogether distinct from any actual
termination of parental rights or even from any determination that a parent is not entitled
to custody pending further proceedings.
30
The majority opinion disputes that it has “found a constitutional right to a jury trial in
child protective proceedings.” Instead, it “simply hold[s] that due process requires a
specific adjudication of a parent’s unfitness . . . .” Never mind that the majority’s
“specific adjudication of a parent’s unfitness” is necessarily and always a jury trial.
Although the majority is correct that “[t]he right to a jury trial is granted by statute,” this
specific right only applies to the adjudication of the first parent, in the course of which
the state may obtain jurisdiction over the abused or neglected child. By holding that the
31
because it is obvious that this will ensure that a child will remain for a longer time with
the unadjudicated parent who may have resided in close proximity with the adjudicated
and unfit parent, I respectfully dissent.31 Although I agree with the majority opinion that
all parents are entitled to due process in the child-protective context, with the
presumption of fitness and the burden of proof to the contrary resting on the state, I see
no constitutional barriers to the long-established procedures in this state in guaranteeing
that such a fitness determination is fairly made.32
While the majority opinion recognizes that “requiring adjudication of each parent
will increase the burden on the state,” it does not acknowledge the greater risk that the
formal adjudication it requires of each parent will increase the burdens on the abused or
neglected child, who may remain in an unsecure position for a prolonged period. Just as
the majority opinion’s failure to recognize that the current procedural requirements
Due Process Clause of the Constitution requires that the second parent of the abused or
neglected child is also entitled to a jury trial, rather than to any other form of due process,
the majority has not only expanded a statutory “right,” but transformed it into a
constitutional right.
31
I am cognizant that the instant case does not involve two parents living in the same
household with the children, but the majority’s abolition of the one-parent doctrine will
apply in that situation just as much as it applies to the instant situation. That reality is
precisely what is signified by the regular inquiries of justices at oral argument about the
legal rules and principles that attorneys would offer for the resolution of their cases that
are equally appropriate in the next “one hundred” cases of the same kind.
32
I am cognizant that the state can immediately take a child into protective custody “[i]f
there is reasonable cause to believe that a child is at substantial risk of harm or is in
surroundings that present an imminent risk of harm and the child’s removal from those
surroundings is necessary to protect the child’s health and safety . . . .”
MCL 712A.14a(1) (emphasis added). See also MCL 712A.14b(1)(a). However, not all
children who are in need of protection will be readily able to qualify for protection under
these demanding standards, and it is these children about whom I am most concerned.
32
adequately protect parents’ rights has caused it to conclude that the risks of erroneously
depriving parents of their rights are great, its failure to recognize that requiring
adjudication of each parent will increase the burden on abused and neglected children has
caused it to conclude that the additional burdens that will be imposed as a result of
requiring adjudication of each parent are minimal. This in turn has caused the majority
opinion to conclude that “those burdens do not outweigh the risks associated with
depriving a parent of [his or her] right[s] . . . .” When the risks and the burdens are
calculated more realistically, I believe it is clear that the latter considerably outweigh the
former. As explained earlier, the risks are low because the Legislature has already
adequately afforded a range of protections for parental rights, while the burdens are high
because abused and neglected children in many cases will be left for significantly longer
periods of time than are necessary in the care of a parent who may ultimately be proved
unfit. While I agree with the majority opinion that “constitutional rights do not always
come cheap,” I do not agree that there is any constitutional right to a jury trial in the
instant context; while the parent of an abused or neglected child has an undeniable right
to due process, this can take many reasonable forms.
4. SUMMARY
Given (a) the interest of children in being protected from abusive and neglectful
parents, (b) the public’s legitimate interest in protecting children from abusive and
neglectful parents, (c) the fact that Laird was only deprived of a trial during the initial
phase of the child-protective proceedings, which simply determines whether the trial
court possesses jurisdiction over the children, (d) the fact that Laird’s rights to his
33
children were adequately protected during the child-protective proceedings, and (e) the
significant costs that would be inflicted on abused and neglected children of this state by
entitling both parents to a trial on their unfitness before allowing the state to intervene to
protect these children, I do not believe that Laird’s constitutional rights to due process
were violated by depriving him of a trial at the adjudicative phase of the process.33
In summary, I agree with the majority opinion that (a) pursuant to MCL
712A.2(b), “once there has been an adjudication, either by trial or plea, the court has
jurisdiction over the child regardless of whether one or both parents have been
adjudicated unfit”; (b) “[p]arents 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”; (c) “there is a presumption that fit parents act in the best
interests of their children”; (d) “all parents are constitutionally entitled to a hearing on
their fitness before their children are removed from their custody,” except that “[i]n the
case of an imminent threat of harm, the state may take the child into custody without
prior court authorization or parental consent”; (e) “the state has a legitimate and
important interest in protecting the health and safety of minors”; (f) “requiring
adjudication of each parent will increase the burden on the state”; (g) “constitutional
rights do not always come cheap”; and (h) “Laird’s complaint is not moot.” (Citations
and quotation marks omitted.) However, for the reasons set forth in this opinion, I
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Laird also argues that his equal protection rights were violated. However, he failed to
raise this issue at the trial court, and thus this issue is not properly before this Court. See
Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (“[A] litigant must preserve
an issue for appellate review by raising it in the trial court. . . . [G]enerally a failure to
timely raise an issue waives review of that issue on appeal.”) (citation omitted).
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respectfully disagree with the majority opinion’s conclusion that both parents are
constitutionally entitled to a jury trial on their fitness before children can be removed
from their custody and placed within the protective jurisdiction of the court.
5. THE CRUX OF THE PROBLEM
Concerning due process, it is always possible to extend additional procedural
rights and entitlements to persons who come into contact with the government, as
criminal defendants, public employees, consumers of public services, regulated parties,
recipients of social-services benefits, or parents of abused and neglected children.
Additional hearings and additional appeals can always be convened, more protective
rules of evidence can always be prescribed, and broader compliance with ever finer
details of process can always be required. There is simply no end to the argument that
“fairness” requires something more, and there is little specificity in the Due Process
Clause that either sustains or refutes most such arguments.
It is for this reason that the principle of deference to the constitutional judgments
of the legislative and executive branches is of critical importance here. The threshold
“presumption of constitutionality” of laws and rules enacted by the accountable branches
of government is not a principle of jurisprudence deserving of mere passing reference,
but, particularly in realms such as that of due process in which the constitutional text is so
relatively open-ended and arguably compatible with alternative understandings of
“fairness,” it is a presumption necessary to ensuring that the judgments of the people and
their elected representatives are not casually replaced by the contrary judgments of the
judiciary.
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What lies at the heart of the “presumption of constitutionality” is that the burden
of persuasion rests heavily with the party seeking to upend the legal status quo to
compellingly demonstrate that the people’s elected representatives have erred in their
understanding of the Constitution, and thus that the extraordinary power of judicial
review should be exercised to strike down what has been enacted in the course of
republican governance. As the breadth and open-endedness of a constitutional provision
becomes increasingly pronounced, this does not become a warrant for the exercise of
judicial discretion and intervention, but instead a warrant for the exercise of judicial
deference-- a respect for a broad range of judgments on the part of the legislative and
executive branches. For when it is uncertain whether the people’s representatives have
acted within the purview of the Constitution, when people can reasonably disagree about
whether a particular procedure is or is not required by due process, it is then that the
“presumption of constitutionality” becomes most important. Otherwise, the presumption
is little more than cant, mere formalism, as opposed to a genuine limitation on the
exercise of judicial power within our constitutional architecture of separated powers.
The “presumption of constitutionality,” if it means anything, signifies that the
burden rests upon the judiciary, as a precondition to the invalidation of a law enacted
through the representative process, to affirmatively demonstrate incompatibility of that
law with the Constitution. It is not the people’s obligation to demonstrate
constitutionality, but the judiciary’s obligation to demonstrate the contrary. It is simply
not enough that a tribunal believes that it would be “better” to do things differently than
the people have chosen. Rather, it is the court’s obligation to establish that under no
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reasonable understanding of the Constitution could it countenance what the people have
understood it to countenance.
What is further implicit in the “presumption of constitutionality” is that the
legislative and executive branches must be viewed as no less committed than the judicial
branch to upholding the Constitution, the principles of which include that citizens who
interact with the government must be treated fairly and in accordance with the
requirements of due process. Legislators, governors, and members of the cabinet each
take an oath to support the Constitution, just as do judges. And it must be presumed that
because the former are reasonably capable of reading the Constitution-- a document
never intended to be the exclusive province of lawyers and judges, but intended to be
accessible to all citizens-- legislators, governors, and members of the cabinet are also
reasonably capable of comprehending their obligations under the Constitution, and
reasonably capable of acting in accordance with these obligations. All of this is implied
by the “presumption of constitutionality,” and it is a presumption, if the separation of
powers is to be maintained, that must be taken seriously when the representatives of the
people act on behalf of those in whose name the Constitution was ratified.
And for at least 70 years, not only have the legislative and executive branches of
this state acted to protect the interests of abused and neglected children through the
enactment of laws that have allowed for the one-parent doctrine, but the judicial branch
itself during this time has understood the laws underlying this doctrine to be fully
constitutional, regularly reviewing and applying their provisions in countless numbers of
cases involving abused and neglected children and their parents. No court of this state
has previously understood these laws to run afoul of the supreme law of the land or of our
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state. At least not until today, when the people and their representatives have been newly
informed that “fairness” now requires something considerably more.
What is it today that accounts for the nullification of the one-parent doctrine and
(although it does not expressly say so) the laws that form this doctrine? What is it today
that accounts for the conclusion that the accountable branches, as well as the judiciary,
have for all these years erred by believing that the protections and guarantees conferred
by our laws on the parents of abused and neglected children were sufficient under the
Constitution? Is there some newly minted decision of the United States Supreme Court
that has now compelled these conclusions? None that the majority opinion identifies.
Are there new statutes or amendments that have been enacted by our Legislature that now
warrant these results? Again, none that are cited. Are there new executive-branch
policies or child-protective measures that have been introduced that now require these
changes? None that are referred to. And is there any suggestion whatsoever that there
has been some miscarriage of justice in the present case, or more generally that there
have been injustices regarding our state’s treatment of parents of abused and neglected
children, or indeed even a single case indicative of serious shortcomings in this process?
The majority opinion apprises us of none.
The majority opinion likely presages that this will be the first of many decisions of
this Court elaborating ever more finely on what “fairness” requires in the context of the
parents of abused and neglected children. There is no principled stopping point
articulated that raises any barrier to future case-by-case-by-case expansions of due
process. And as invariably tends to occur when matters that were once the subject of
representative decision-making become “constitutionalized,” there will be a long line of
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future decisions in which additional procedures, details, and hearings are successively
layered on the child-protective process by the judiciary, ever more closely perhaps
tracking the procedures, details, and hearings of the criminal justice process. As a result,
the final disposition and placement of abused and neglected children will become
increasingly delayed by trials and legal procedures, requiring, despite every justice’s
obvious solicitude for their interests, that abused and neglected children remain for
extended periods in what child-protective workers might understandably view as a less-
than-secure environment. And also as a result, the judgments of legislatures and
governors, reached after committee and administrative hearings, the testimonies of
witnesses of a wide variety of viewpoints, public debates inside and outside the chambers
of government, and even occasionally after elections, will be replaced by the
determinations of appellate judges, in which each new procedure, detail, and hearing
becomes an issue of “constitutional right” and “entitlement.” And thus once again, the
realm of the lawyer and the judge expands, and the realm of ordinary citizens and those
elected to represent them diminishes.
Our legislative and executive branches have adopted a broad array of procedures
in support of the due process rights of the parents of the abused or neglected child. In the
present case, Laird was afforded notice of multiple proceedings, an attorney to represent
his interests at these proceedings, and an opportunity to be heard at these proceedings.
Yes, more procedures, more details, more hearings, and more “constitutional” guarantees
could doubtlessly be constructed by this Court, but again it is always possible to fill in the
blanks of the Due Process Clause with more “rights” and “guarantees,” albeit at some
point only at a cost to other legitimate rights and interests, in this case those of the abused
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or neglected child. The majority opinion is quite correct in recognizing that
constitutional rights “do not always come cheap.” However, it is for precisely that
reason-- that there are, in fact, costs to the devising of new constitutional rights-- that a
Court should take the utmost care, and exercise the utmost judicial humility, in deferring
to the judgments and expertise of those public actors best equipped to reasonably balance
the interests of abused and neglected children and their parents coming from seriously
dysfunctional homes. And it is for the same reason that this Court should exercise the
utmost care, and exercise the utmost judicial humility, in ensuring that any new
expression of “constitutional rights” is genuinely grounded in the text and history of the
Constitution and that the contrary judgments of the Legislature and the Governor are
equally genuinely incompatible with that Constitution. Precisely because constitutional
rights “do not always come cheap,” this Court should seek to ensure that the
“presumption of constitutionality” is faithfully honored to the point at which it can be
genuinely said that the costs incurred by a new “constitutional right” must be incurred
because that is what the Constitution compels, and the Constitution compels nothing less.
IV. CONCLUSION
For these reasons, I would affirm the trial court and hold that In re CR correctly
held that the one-parent doctrine, which has been a part of our statutory scheme for more
than 70 years, is not unconstitutional under the Due Process Clause of the Fourteenth
Amendment. The Legislature has adequately protected the due process rights of a parent
of an abused or neglected child (a child whose other parent has already been adjudicated
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unfit) by requiring a hearing on the parent’s fitness before the state can interfere with his
or her parental rights.
Stephen J. Markman
David F. Viviano
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