A state’s most senior judge takes child welfare to task as she heads toward retirement
BY JOHN KELLY (John Kelly is senior editor for The Imprint.)
You don’t see a state’s most senior judge weigh in on with force on a standard proceeding in child welfare court every day. But that is exactly what Michigan Supreme Court Chief Justice Bridget Mary McCormack did, in part because she felt the issue at hand in the case had become all too standard: the termination of parental rights.
The mother in this case had her rights terminated by a trial court, a decision that was affirmed by the state Court of Appeals. A majority of McCormack’s colleagues on the Supreme Court saw it the same way and affirmed the termination. She saw a failure to consider the full scope of options to keep family connected, calling the termination “both tragic and frustratingly commonplace.”
From McCormack’s opinion:
A mom expressed a strong interest to remain a part of her daughter’s life. Her daughter expressed a similarly strong interest to see her mom. And yet the best our legal system has to offer them is a complete severing of their legal relationship, with no consideration of creative solutions that would benefit the whole family. I wish this case was an outlier. But in ten years reviewing records in termination cases, I have seen many just like this where our statutory process for protecting children has failed them.
The case, known as In re G.M. Dixson, involves the mother of a child identified as GMD. Her infant half-sister died in 2017 as a result of unsafe sleep practices. At the time GMD was living with her mother’s family friends from her church, an arrangement reached without the involvement of CPS so that mom could find housing, care for the new baby and get her education back on track.
When the infant died, the Michigan Department of Health and Human Services became involved. The family friends became licensed foster parents so they could remain the caregivers for GMD.
Services like parenting classes and anger management were rendered, ultimately to the approval of caseworkers. People in the mother’s life attested to the fact that she had been regularly taking medication for her mental health challenges, was managing her own life well, and had a good relationship with her daughter. GMD also expressed a desire to see her mother, but wished to remain with the family friends and thought of them as parents.
Yet on May 2021, the trial court terminated the mother’s rights, citing ongoing mental health struggles and her use of a suspended license to arrive at the actual termination hearing. “… It would not be safe for the child to be returned … to the mother at this time or at a point in time in the reasonably foreseeable future.”
The overturning of terminations of parental rights by higher courts is fairly rare, and this was no exception. But McCormack, whose career as a jurist will soon come to an end, could not abide a finding that prevents the mother and GMD from any contact when there was no need to do that in the pursuit of permanency in this case. There were opportunities to reunify them, she argues, but never a time when termination was necessary for everyone’s safety.
“At no point during the termination hearings did anyone—the DHHS staff, the respondent-mother’s attorney, the lawyer-guardian ad litem, the judge—consider any other possible arrangement,” McCormack wrote. “Everyone focused solely on two choices: full custody or full termination.”
But McCormack did not limit her dissenting remarks to the injustices she perceived in this case. Over 12 pages, frequently citing the work of abolitionist organizations and writers such as the upEND Movement and Dorothy Roberts, the chief justice delivered a top-down critique of business as usual in the child welfare courts.
You can click here to read the entire dissenting opinion, but following are a few choice remarks from McCormack.
The idea of foster care removal as harm:
The harms of removal and sometimes also foster care can produce “worse long-term outcomes than if the child had remained at home.” But Michigan’s removal statutes do not require courts to balance these harms against the harm that might result from staying home.
On the general standard in federal law that reasonable efforts are made to prevent foster care, encourage reunification, and prevent the need for termination of parental rights:
The respondent-mother did not just have to attend parenting and relationship classes. She had to benefit from them. But what does that mean? Asking a parent to participate in services is a reasonable request. But terminating the parent-child relationship on the sole basis of a failure to benefit from such services—as determined subjectively by a single caseworker—is unreasonable.
Grounds for terminating a parent’s rights:
Some grounds for termination are backward-looking, asking whether the conditions that led to court involvement have been resolved. For instance, a court can order termination where “conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time …”
Other grounds for termination are more forward-looking, asking whether the parent has shown an ability to “provide proper care and custody” for the child or whether there is a likelihood the child will be “harmed if he or she is returned to the home of the parent.”
The problem with this statutory framework is that it forces on courts a binary choice: full custody or full termination. It discourages creativity by courts and advocates in considering alternative arrangements for a family.
The “best interests” standard used frequently by courts to weigh the right thing to do for a child:
… The best-interests standard is capacious, allowing for individual, subjective biases about parenting to drive decision-making. This isn’t a new observation, which makes it all the more frustrating. In 1977, then Justice Brennan noted that the “best interests” standard’s open-ended nature allowed “social workers of middle-class backgrounds, perhaps unconsciously, … to favor continued placement in foster care with a generally higher-status family” because of a “bias that treats the natural parents’ poverty and lifestyle as prejudicial to the best interests of the child.”
Racial disparities in the child welfare system:
… The legal framework governing child welfare cases is full of open-ended, hard-to-apply standards that invite subjectivity and bias. Minority families may experience “cultural misunderstandings” from courts and advocates who equate parenting practices different from their own as neglectful or wrong.
McCormack concludes with a list of solutions she sees as crucial to making the child welfare system, particularly the court’s involvement in it, more just and effective. Among them: legal representation for parents “from start to finish”; requiring courts to weigh “the harm of removal” in decisions, alongside “best interests”; and integrating limited guardianship arrangements as a means of reducing the use of terminations.
And the best strategy for reform, she writes, is to “reduce the need” for child welfare in the first place. “The more we move solutions upstream, the less we will need downstream interventions.”
McCormack concludes with a list of solutions she sees as crucial to making the child welfare system, particularly the court’s involvement in it, more just and effective. Among them: legal representation for parents “from start to finish”; requiring courts to weigh “the harm of removal” in decisions, alongside “best interests”; and integrating limited guardianship arrangements as a means of reducing the use of terminations.
And the best strategy for reform, she writes, is to “reduce the need” for child welfare in the first place. “The more we move solutions upstream, the less we will need downstream interventions.”
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