Chapter 17: Hearings on Termination of Parental Rights

In this chapter. . .

This chapter sets out the applicable procedures, evidentiary standards, and statutory bases for terminating a parent’s parental rights to a child. Termination of a parent’s parental rights may be considered at an initial dispositional hearing or a hearing on a supplemental petition. In either situation, the petitioner must establish a statutory basis for terminating a parent’s parental rights, and the court must determine whether terminating the parent’s parental rights is in the child’s best interests.

In an effort to provide trial courts with a quick practical guide through the process of terminating parental rights, the State Court Administrative Office (SCAO) developed the Toolkit for Judges and Attorneys: Termination of Parental Rights.

17.1Request for Termination of Parental Rights

A request for termination of parental rights must be made in an original, amended,1 or supplemental petition.2 MCR 3.977(A)(2).3 If a petition or an amended petition fails to request the termination of parental rights, a subsequent order terminating parental rights must be set aside. In re SLH, 277 Mich App 662, 674 (2008). See Section 7.3(C) for a detailed discussion of petitions requesting termination of parental rights.

Only individuals or entities granted standing under a statute, court rule, or case law may participate in proceedings to terminate parental rights. In re Foster (Catherine), 226 Mich App 348, 357-359 (1997). MCL 712A.19b(1) and MCR 3.977(A)(2) allow the following individuals or entities to petition the court to terminate parental rights:

•the agency, which means the “public or private organization, institution, or facility responsible pursuant to court order or contractual arrangement for the care and supervision of [the] child, MCR 3.903(C)(1);

•the child;

•the child’s guardian, legal custodian, or representative;

•a concerned person;4

•the child advocate; or

•the prosecuting attorney regardless of whether he or she is representing or acting as a legal consultant to the agency or any other party.

The parties in a child protective proceeding include “the petitioner, child, and respondent,”5 and “the parent, guardian, or legal custodian.” MCR 3.903(A)(19)(b)(i)-(ii). 

Note: “‘Parent’ means the mother, the father as defined in MCR 3.903(A)(7), or both, of the minor. It also includes the term ‘parent’ as defined in MCR 3.002(20).”6 MCR 3.903(A)(18). MCR 3.002(20) defines an Indian child’s parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the putative father if paternity has not been acknowledged or established.”

“‘Guardian’ means a person appointed as guardian of a child by a Michigan court pursuant to MCL 700.5204 or [MCL] 700.5205, by a court of another state under a comparable statutory provision, or by parental or testamentary appointment as provided in MCL 700.5202, or a juvenile guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.” MCR 3.903(A)(11).

 “‘Legal Custodian’ means an adult who has been given legal custody of a minor by order of a circuit court in Michigan or a comparable court of another state or who possesses a valid power of attorney given pursuant to MCL 700.5103 or a comparable statute of another state. It also includes the term ‘Indian custodian’ as defined in MCR 3.002(15).”7 MCR 3.903(A)(14). An Indian custodian is “any Indian person who has custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control have been transferred by the child’s parent.” MCR 3.002(15).

The court must give “[h]earings on petitions seeking termination of parental rights . . . the highest possible priority consistent with the orderly conduct of the court’s caseload.” MCR 3.977(C)(2).

The court cannot consider terminating a respondent-parent’s parental rights and placing the child in the permanent custody of the court unless it has first established jurisdiction over the child under MCL 712A.2(b).8 In re Taurus F, 415 Mich 512, 526 (1982). See also MCR 3.977(E)(2) (requiring the court to assume jurisdiction over a child under MCL 712A.2(b) before ordering termination at an initial dispositional hearing); MCR 3.977(F) (allowing the court to take action on a supplemental petition seeking termination if the child is “already within the jurisdiction of the court” for another reason); MCR 3.977(H) (allowing the court to take action on a supplemental petition seeking termination if “the child is within the jurisdiction of the court[]”).

In addition, “due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship.” In re Sanders, 495 Mich 394, 422 (2014).9 Accordingly, “all parents ‘are constitutionally entitled to a hearing on their fitness before their children are removed from their custody.’” Id. at 412, quoting Stanley v Illinois, 405 US 645, 658 (1972) (concluding that the one-parent doctrine10 violated the nonadjudicated parent’s constitutional due process rights “[b]ecause [it] allow[ed] the court to deprive a parent of th[e] fundamental right [to the care, custody and control of his or her children] without any finding that he or she [was] unfit”). “[N]either the admissions made by [the adjudicated parent] nor [the unadjudicated parent’s] failure to object to those admissions constituted an adjudication of [the unadjudicated parent’s] fitness[.]” In re SJ Temples, unpublished opinion per curiam of the Court of Appeals, issued March 12, 2015 (Docket No. 323246)11 (finding that the trial court violated the unadjudicated parent’s “due process rights by subjecting him to dispositional orders without first adjudicating him as unfit[]”).

A.No Right to Jury at Disposition

“The right to a jury in a [child protective] proceeding exists only at the trial.” MCR 3.911(A). However, there is no right to have a jury determine whether to terminate parental rights. MCR 3.977(A)(3). See also In re AMAC, 269 Mich App 533, 537 (2006), where the Court of Appeals stated, “Unlike the adjudicative hearing, at the initial dispositional hearing the respondent is not entitled to a jury determination of the facts[.]”12

B.Suspension of Parenting Time

“If a petition to terminate parental rights to a child is filed, the court may suspend parenting time for a parent who is a subject of the petition.” MCL 712A.19b(4); MCR 3.977(D).

1    For purposes of child protective proceedings, “‘[a]mended petition’ means a petition filed to correct or add information to an original petition, as defined in [MCR 3.903[(A)(20) before it is adjudicated.” MCR 3.903(C)(2).

2    For purposes of child protective proceedings, “‘[s]upplemental petition’ means: (a) a written allegation, verified in the manner provided in MCR 1.109(D)(3), that a parent, for whom a petition was authorized, has committed an additional offense since the adjudication of the petition, or (b) a written allegation, verified in the manner provided in MCR 1.109(D)(3), that a nonrespondent parent is being added as an additional respondent in a case in which an original petition has been authorized and adjudicated against the other parent under MCR 3.971 or MCR 3.972, or (c) a written allegation, verified in the manner provided in MCR 1.109(D)(3), that requests the court terminate parental rights of a parent or parents under MCR 3.977(F) or MCR 3.977(H).” MCR 3.903(C)(13). MCR 3.903(C)(8) defines a nonrespondent parent as “a parent who is not named as a respondent in a petition filed under MCL 712A.2(b).”

3    “[MCR 3.977] applies to all proceedings in which termination of parental rights is sought. Proceedings for termination of parental rights involving an Indian child are governed by 25 USC 1912 in addition to this rule.” MCR 3.977(A)(1). MCL 712B.9 and 25 CFR 23.112 also provides proceedings for termination of parental rights involving an Indian child. See Chapter 19 for special procedures applicable to cases involving Indian children.

4    MCL 712A.19b(6) defines a concerned person as “a foster parent with whom the child is living or has lived who has specific knowledge of behavior by the parent constituting grounds for termination under [MCL 712A.19b](3)(b) or [MCL 712A.19b(3)](g) and who has contacted the [DHHS], the prosecuting attorney, the child's attorney, and the child's guardian ad litem, if any, and is satisfied that none of these persons intend to file a petition [to terminate parental rights].”

5    MCR 3.977(B) limits the definition of respondent for termination of parental rights hearings to only include the child’s natural or adoptive mother and the child’s father as defined by MCR 3.903(A)(7). It does not include “other persons to whom legal custody has been given by court order, persons who are acting in the place of the mother or father, or other persons responsible for the control, care, and welfare of the child.” MCR 3.977(B).

6    Formerly MCR 3.002(10).

7    Formerly MCR 3.002(7).

8    See Section 4.3 for a summary of the statutory bases for personal jurisdiction.

9    For additional information on the procedural due process rights of the nonrespondent parent, see Section 4.3(C)(2).

10    The one-parent doctrine permitted the court to “enter dispositional orders affecting parental rights of both parents” once “jurisdiction [was] established by adjudication of only one parent.” In re Sanders, 495 Mich at 407.

11    Unpublished opinions are not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1).

12    See Section 17.3 for a detailed discussion of termination of parental rights at an initial disposition hearing.