Archived Story

LaBre: Law makes family presumptions

Published 4:15pm Thursday, December 13, 2012

LaBre on Law

By Robert W. LaBre, J.D.

Special to Leader Publications

She sat across my desk, looking both nervous and depressed. Her daughter’s three children were taken by DHS on an emergency petition and placed into foster care. The petition suggested domestic violence in the home, along with substance abuse and financial instability.

It’s a Michigan case, none of the children have Indian heritage, and the father, who also lived in the home, signed an affidavit of paternity.

“What is it you want me to do?” I asked.

“My grandchildren are in foster care; I want them placed with me instead,” she said.

“Do you live in Michigan?” I asked.

“Yes,” she said.

“Have you talked with the caseworker about this issue?” I asked.

Failure to report

“She said that she didn’t think the children would be placed with me,” she said. “I don’t understand; I’ve been around those children all their lives: babysitting and caring for them regularly!”

“What did the caseworker say?” I asked.

“She told me it’s because I didn’t report the problems,” she said.

“Failure to report known child abuse or neglect to the DHS is a form of neglect in itself,” I said. “That suggests the problems in the home were blatantly affecting the children.”

“That’s preposterous!” she exclaimed. “Those two may have argued, but I never saw any drugs in the house or bruising on my daughter or the children. Otherwise, I would have done something.”

Though she spoke persuasively, her facial expressions and body language were limp; I couldn’t read her veracity with any comfort.

“The law creates a presumption favoring placement of the children with family members who are willing and fit to care for them,” I replied. “The key word in that statement, however, is ‘fit.’ And the presumption in your favor is easily rebutted, especially in situations like this, where uncertainty looms around every corner.”

“Well, I want to hire you to represent me,” she said. “I want my grandchildren!”

“I’m sorry, but that’s not possible,” I replied. “As a relative of the children, not the parent, you have no standing to make an appearance in this case.”

“Are you telling me that there’s nothing I can do!?” she cried.

“Not exactly,” I said. “First, you need to wait for a definite reply from DHS. Sometimes, it takes DHS as long as 30 days before they make a decision regarding placement. But if they decide to place the children in foster care, then I’m telling you that the only people who can argue to have the children placed with you or any other relative are the parents.

“Let me ask you this: Are there any other family members who can take care of the children?”

“Yes, we have a large family,” she said. “Why?”

“Having the children placed with a family member makes a tremendous impact on the case,” I replied. “Let’s assume that instead of going to trial your daughter pleads no contest to the allegations against her, and she’s required to undergo services. If she’s determined to have inadequately complied with the required service plan and the children are in foster care, her parental rights will typically be terminated.

“Termination of parental rights is no small affair. The parental bond is legally severed, and the children are put up for adoption. That means you would no longer have the ability to see them as a grandparent. And if parental rights are terminated with one child, the DHS can move to take other children out of the home under the theory of anticipatory neglect. That means if your daughter gives birth to another child in the future, even after this case is closed, DHS could still come and take that newborn. In addition, unless the court says otherwise, a parent’s obligation to pay child support isn’t vitiated simply because parental rights have been terminated, support must still be paid.

Family is better

“But assume the same scenario except the children are placed with a family member at the time DHS moves for termination. Now, the court is required to set up a guardianship instead, with the family member who has the children as the guardian.

“This allows the parents to potentially get their act together at some point in the future. Visitation is still intact for all parties involved. DHS would be prevented from bringing an anticipatory neglect theory against your daughter, if she has anymore children. And finally, through my eyes, the children involved will have the benefit of being raised by blood, not water.”

“Let’s start making some phone calls,” she said.

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