Uncomprehensive Rulemaking

The child welfare reform has never included the concept of comprehensive.  I only say this because "reform" as seen in this Michigan bill, getting ready to become a law, is not comprehensive, meaning it is not universal.  

For example, one area of law will be reformed, but another will go untouched, making all this rulemaking for naught.  This is a classic example, which I shall be including in my text book, of what is considered "Uncomprehensive Rulemaking: the law was made, but nothing changed."

CONDITIONS FOR TERMINATION OF PARENTAL RIGHTS: 

REVISE IN CERTAIN CIRCUMSTANCES

House Bill 4535 (Substitute H-1)

House Bill 4820 as introduced

Sponsor: Rep. Pam Byrnes

Committee: Judiciary

First Analysis (4-27-09)

BRIEF SUMMARY: The bills would amend the juvenile code (within the Probate Code) to narrow those instances in which a court could terminate a parent’s parental rights, and the Child Protection Law to narrow those instances in which the Department of Human Services must petition a court to have a parent’s parental rights terminated, in cases where that parent had previously voluntarily given up parental rights to another child.

FISCAL IMPACT: The bills would have an indeterminate, but likely negligible, fiscal impact on the judiciary. House Bill 4820 could reduce the number of cases for which the Department of Human Services must file for a termination of parental rights, and thus could also reduce the number of resulting out-of-home placements. This could reduce costs to the Department of Human Services. The amount of any cost reduction is indeterminate.

THE APPARENT PROBLEM:

According to child advocates, there are unintended consequences attached to current laws that put a parent in jeopardy of losing parental rights to a present child because rights to a sibling had previously been given up voluntarily in the face of abuse and neglect charges. Currently, the family division of circuit court may terminate a parent’s parental rights to a present child if the court finds by clear and convincing evidence that previously, the parent or parents had voluntarily given up a child after neglect and abuse charges had been filed. In addition, child protective services workers are required to file a petition to terminate a parent’s parental rights if the worker determines a child is at risk of harm and the child’s parent or parents had previously voluntarily relinquished their rights to another child after abuse and neglect charges had been filed.

Child advocates maintain that the law, as it is practiced, discourages parents from agreeing to voluntarily give up their rights to a child and so forces more cases into contested case hearings, which can be inefficient, lengthy, and difficult. A parent who realizes he or she may be too immature or presently incapable of caring well for a child is less likely to voluntarily agree to give up the child if by so doing, the state would have grounds to terminate rights to future children and, should there be substantiation of abuse of a future child, it would lead automatically to the Department of Human Services petitioning for termination of parental rights.

For instance, a teenager may be investigated for abuse and neglect and a petition filed to terminate the parent’s parental rights because the teen is too immature to care properly for a young child or has little means of supporting the child and so may, in the child’s best interest, voluntarily relinquish the child to another relative or to the DHS. If that person had more children in the future, the DHS would be required to petition to terminate the parental rights to those children if any type of abuse or neglect could be substantiated – even if it were something like a cold apartment because of being unable to pay the gas bill or if an adult in the home or the other parent committed an abusive act.

Advocates have requested the law be changed to apply only in situations in which the voluntary termination involved abuse that was more serious, such as physical injury, murder, sexual assault, or abandonment. In this way, the focus could be on the conduct of the parent in the previous situation, and not on situations that may have since resolved, such as substance abuse, immaturity, or underemployment...more

This is wonderful. Only one small problem: ABANDONMENT

See, a law can be interpreted due to the ambiguity of rulemaking, an intentional process. Let us now examine the Michigan codified definition ABANDONMENT.

The current termination of parental rights statute assigns a time period for "dessertion" under the following two conditions:

712A.19b 2(a)(ii) The child's parent has deserted the child for 91 or more days and has not sought custody of the child during that period.

712A.19b(3)(a)(i) The child's parent is unidentifiable, has deserted the child for 28 or more days, and has not sought custody of the child during that period. For the purposes of this section, a parent is unidentifiable if the parent's identity cannot be ascertained after reasonable efforts have been made to locate and identify the parent.

In Michigan, there are numerous instances where parents do not receive court notification of dates and times or if they do, it is after the court date. Not showing for court is considered as abandonment and grounds for termination of parental rights.

712A.19b(3)(k) The parent abused the child or a sibling of the child and the abuse included 1 or more of the following:

(i) Abandonment of a young child.

Nowhere contained in this termination of parental rights statute is there a defined time period for abandonment.

Since there is no temporal codificaiton for "abandonmnet", the typical method utilized by child placing agencies is to assert the assignment of the penal code of abandonment as, not only making the situation felonious, but automatically guaranteeing termination of parental rights.

Even though abandonment is under the penal code, it is not grounds for termination of parental rights. The statute has provisions to correct the event of abandonment.

Until there is an effective regulatory structure over the ethics and operations of child placing agencies, nothing will ever change. The following statute becomes the nexus between termination of parental rights and poverty.

750.161 Desertion, abandonment, or refusal or neglect to provide shelter, food, care, and clothing;
felony; penalty; bond; probation; failure to comply with conditions in bond; forfeiture of bond; disposition of sums received; continuing offense; proof.

Sec. 161.

(1) A person who deserts and abandons his or her spouse or deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for
them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her spouse or his or her children under 17 years of
age, is guilty of a felony, punishable by imprisonment in a state correctional facility for not less than 1 year and not more than 3 years, or by imprisonment in the county jail for not less than 3 months
and not more than 1 year.

(2) If at any time before sentence the defendant enters into bond to the people of the state of Michigan in such penal sum for such term and with such surety or sureties as may be fixed by the court, conditioned that he or she will furnish his or her spouse and children with necessary and proper shelter, food, care, and clothing, or will pay to the clerk of the court, or other designated person, such sums of money at such times as the court shall order to be used to provide food, shelter, and clothing for his or her spouse and children, or either of them, then the court may make an order placing the defendant in charge of a probation officer. The court may require that the defendant shall from time to time report to the probation officer as provided by law. The court may extend the period of probation from time to time or the court may defer sentence in the cause, but no term of any bond or any probation period shall exceed the maximum term of imprisonment as provided for in this section.

(3) Upon failure of the defendant to comply with any of the conditions contained in the bond, the defendant may be ordered to appear before the court and show cause why sentence should not be
imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and further defer sentence as may be just and proper. Whenever the whereabouts of the defendant is unknown, the court may summarily issue a bench warrant for the arrest of the defendant.

(4) The court, upon default by the defendant to comply with the conditions of the bond and the orders of the court, shall notify the prosecuting attorney, who shall immediately file a petition in the
court in which the cause is pending to declare the bond forfeited. A copy of the petition and a notice of hearing on the petition shall be served upon the surety or sureties, if any, named in the bond at least
4 days before the hearing of the petition. Upon holding a hearing on the petition, the court may declare the bond forfeited. When so ordered, the prosecuting attorney shall immediately institute the
necessary action to collect the principal sum of the bond. If a cash bond has been filed, the cash bond shall be declared forfeited by the court.

(5) All sums received from bonds being forfeited shall be paid to the clerk of the court, who shall hold and disburse the money for the use of those entitled to the money in accordance with the orders of the
court for their necessary food, care, shelter, and clothing.

(6) Desertion, abandonment, or refusal or neglect to provide necessary and proper shelter, food,
care, and clothing as provided in this section shall be considered to be a continuing offense and may be so set out in any complaint or information. Proof of the offense charged at any time during the period
alleged in the complaint or information shall be considered proof of a violation of this section.

Poverty is still codified as the crime of abuse and neglect.  According to this, lack of medical resources is abandonment, providing grounds for cases to be brought forth in family court in order to access medical assistance for the child.  This is normally seen in psychological services.  Community based mental health services are poorly design because they rely upon the "pill model".

Another aspect to the vagueness of the term "abandonment" is whether it is a legal or illegal abandonment. Legal abandonment legislation can be found in the Born Alive Infant Prevention Act and the Safe Delivery Program.

Perversely, Illegal Abandonment has been always interpreted as unauthorized kinship or affinity placements. Under these conditions, parental rights have been terminated by the courts, and the practice shall continue until there is put in place a system of regulation for the birth families to be able to exercise their rights to petition the government for redress of grievance.

As it currently stands, the grievance procedures in the state are only built of straw.

This concludes the lesson on "Uncomprehensive Rulemaking".