{"id":28007,"date":"2023-01-24T19:57:20","date_gmt":"2023-01-25T02:57:20","guid":{"rendered":"http:\/\/amicuscuria.com\/wordpress\/?p=28007"},"modified":"2023-01-24T19:57:20","modified_gmt":"2023-01-25T02:57:20","slug":"terminating-parental-rights-mccormacks-dissent","status":"publish","type":"post","link":"http:\/\/amicuscuria.com\/wordpress\/terminating-parental-rights-mccormacks-dissent\/","title":{"rendered":"Terminating Parental Rights: McCormack\u2019s Dissent"},"content":{"rendered":"\n

A state\u2019s most senior judge takes child welfare to task as she heads toward retirement<\/em><\/p>\n\n\n\n

BY\u00a0JOHN KELLY<\/a> (John Kelly is senior editor for The Imprint.)<\/p>\n\n\n\n

\"\"
Michigan Supreme Court Chief Justice Bridget Mary McCormack<\/figcaption><\/figure>\n\n\n\n

Y<\/strong>ou don\u2019t see a state\u2019s 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.<\/p>\n\n\n\n

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\u2019s 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 \u201cboth tragic and frustratingly commonplace.\u201d<\/p>\n\n\n\n

From McCormack\u2019s opinion:<\/strong><\/p>\n\n\n\n

A mom expressed a strong interest to remain a part of her daughter\u2019s 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.<\/em><\/p>\n\n\n\n

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\u2019s 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. <\/p>\n\n\n\n

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. <\/p>\n\n\n\n

Services like parenting classes and anger management were rendered, ultimately to the approval of caseworkers. People in the mother\u2019s 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. <\/p>\n\n\n\n

Yet on May 2021, the trial court terminated the mother\u2019s rights, citing ongoing mental health struggles and her use of a suspended license to arrive at the actual termination hearing. \u201c\u2026 It would not be safe for the child to be returned \u2026 to the mother at this time or at a point in time in the reasonably foreseeable future.\u201d<\/p>\n\n\n\n

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<\/a>, 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\u2019s safety. <\/p>\n\n\n\n

\u201cAt no point during the termination hearings did anyone\u2014the DHHS staff, the respondent-mother\u2019s attorney, the lawyer-guardian ad litem, the judge\u2014consider any other possible arrangement,\u201d McCormack wrote. \u201cEveryone focused solely on two choices: full custody or full termination.\u201d<\/p>\n\n\n\n

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<\/a> and Dorothy Roberts<\/a>, the chief justice delivered a top-down critique of business as usual in the child welfare courts. <\/p>\n\n\n\n

You can\u00a0click here\u00a0<\/a>to read the entire dissenting opinion, but following are a few choice remarks from McCormack.<\/p>\n\n\n\n

The idea of foster care removal as harm: <\/strong><\/p>\n\n\n\n

The harms of removal and sometimes also foster care can produce \u201cworse long-term outcomes than if the child had remained at home.\u201d But Michigan\u2019s removal statutes do not require courts to balance these harms against the harm that might result from staying home.<\/em><\/p>\n\n\n\n

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: <\/strong><\/p>\n\n\n\n

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\u2014as determined subjectively by a single caseworker\u2014is unreasonable.<\/em><\/p>\n\n\n\n

Grounds for terminating a parent\u2019s rights:<\/strong><\/p>\n\n\n\n

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 \u201cconditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time \u2026\u201d <\/em><\/p>\n\n\n\n

Other grounds for termination are more forward-looking, asking whether the parent has shown an ability to \u201cprovide proper care and custody\u201d for the child or whether there is a likelihood the child will be \u201charmed if he or she is returned to the home of the parent.\u201d  <\/em><\/p>\n\n\n\n

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.<\/em><\/p>\n\n\n\n

The \u201cbest interests\u201d standard used frequently by courts to weigh the right thing to do for a child:<\/strong><\/p>\n\n\n\n

\u2026 The best-interests standard is capacious, allowing for individual, subjective biases about parenting to drive decision-making. This isn\u2019t a new observation, which makes it all the more frustrating. In 1977, then Justice Brennan noted that the \u201cbest interests\u201d standard\u2019s open-ended nature allowed \u201csocial workers of middle-class backgrounds, perhaps unconsciously, \u2026 to favor continued placement in foster care with a generally higher-status family\u201d because of a \u201cbias that treats the natural parents\u2019 poverty and lifestyle as prejudicial to the best interests of the child.\u201d<\/em><\/p>\n\n\n\n

Racial disparities in the child welfare system:<\/strong><\/p>\n\n\n\n

\u2026 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 \u201ccultural misunderstandings\u201d from courts and advocates who equate parenting practices different from their own as neglectful or wrong.<\/em><\/p>\n\n\n\n

McCormack concludes with a list of solutions she sees as crucial to making the child welfare system, particularly the court\u2019s involvement in it, more just and effective. Among them: legal representation for parents \u201cfrom start to finish\u201d; requiring courts to weigh \u201cthe harm of removal\u201d in decisions, alongside \u201cbest interests\u201d; and integrating limited guardianship arrangements as a means of reducing the use of terminations. <\/p>\n\n\n\n

And the best strategy for reform, she writes, is to \u201creduce the need\u201d for child welfare in the first place. \u201cThe more we move solutions upstream, the less we will need downstream interventions.\u201d<\/p>\n\n\n\n

McCormack concludes with a list of solutions she sees as crucial to making the child welfare system, particularly the court\u2019s involvement in it, more just and effective. Among them: legal representation for parents \u201cfrom start to finish\u201d; requiring courts to weigh \u201cthe harm of removal\u201d in decisions, alongside \u201cbest interests\u201d; and integrating limited guardianship arrangements as a means of reducing the use of terminations. <\/p>\n\n\n\n

And the best strategy for reform, she writes, is to \u201creduce the need\u201d for child welfare in the first place. \u201cThe more we move solutions upstream, the less we will need downstream interventions.\u201d<\/p>\n\n\n\n

Mainstream news outlets don\u2019t cover child welfare and juvenile justice. DONATE today.<\/em><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

A state\u2019s most senior judge takes child welfare to task as she heads toward retirement BY\u00a0JOHN KELLY (John Kelly is senior editor for The Imprint.) You don\u2019t see a state\u2019s most senior judge weigh in on with force on a … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-28007","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/28007","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/comments?post=28007"}],"version-history":[{"count":1,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/28007\/revisions"}],"predecessor-version":[{"id":28009,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/posts\/28007\/revisions\/28009"}],"wp:attachment":[{"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/media?parent=28007"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/categories?post=28007"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/amicuscuria.com\/wordpress\/wp-json\/wp\/v2\/tags?post=28007"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}