Wednesday, June 4, 2014


How many parents have lost rights to their children because of the application by the Sate of Michigan and its court system of this unconstitutional doctrine?

#TERRY TALKS “Ideas worth sharing “

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group
DATE: 06/04/14 This article in fully cited note format

A former Jackson County sheriff candidate serving a prison term for a federal cocaine offense is at the center of a Michigan Supreme Court case that deems the state's "one parent doctrine" unconstitutional.[4]

The Michigan Supreme Court has ruled unconstitutional a doctrine that lets authorities remove children from their parents’ custody if just one parent is deemed unfit. [1]
The court’s 5-2 decision on Monday found that the more than 70-year-old “one-parent doctrine” infringes on the due process rights of parents, overturning lower courts’ rulings. [1]
In a five-to-two opinion released Monday, the high court said because the one-parent doctrine allows the court to deprive a parent of the fundamental right to control the care and custody of a child it is a violation of the due process clause of the 14th Amendment.[2]
The state must balance its “legitimate” and “crucial” interest in protecting children “with the fundamental rights of parents,” the justices said. [1]
In re SANDERS Docket No. 146680. Argued November 7, 2013 (Calendar No. 6). Decided June 2, 2014. [3]
The Department of Human Services (DHS) petitioned the Jackson Circuit Court, Family Division, to assume jurisdiction over the minor children of Tammy Sanders and Lance Laird after the youngest child was born with drugs in his system.[3]

The court, Richard N. LaFlamme, J.,  removed the child from Sanders’s custody and placed him with Laird, who at the time also had  custody of the older child. The DHS subsequently filed an amended petition, alleging that Laird had tested positive for cocaine, that Sanders had admitted using drugs with Laird, and that Sanders had spent the night at Laird’s home despite a court order that prohibited her from having unsupervised contact with the children. [3]
At the preliminary hearing, the court removed the children from Laird’s custody and placed them with the DHS. Laird contested the allegations in the amended petition and requested an adjudication with respect to his fitness as a parent. [3]
Sanders pleaded no contest to the allegations of neglect and abuse in the amended petition, but Laird declined to enter a plea and instead repeated his demand for an adjudication and requested that the children’s temporary placement be changed from their aunt to their paternal grandmother, with whom Laird resided. At a placement hearing, Laird admitted that he had allowed Sanders to spend one night at his house after the court removed the children from her custody but asserted that the children never saw her that night. Laird also testified that he was on probation for a domestic violence conviction. The court took the placement motion under advisement and maintained placement of the children with their aunt pending Laird’s adjudication.[3]
A few weeks later, the DHS dismissed the remaining allegations against Laird, and his adjudication was canceled. Following a review hearing, the court ordered Laird to comply with a service plan, including parenting classes, a substance-abuse assessment, counseling, and a psychological evaluation; restricted his contact with the children to supervised parenting time; and continued placement of the children with their aunt. Laird subsequently moved for immediate placement of the children with him, arguing that the court had no authority to condition the placement of his children on his compliance with a service plan because he had not been adjudicated as unfit.[3]
The court denied the motion, relying on the one-parent doctrine derived from In re CR, 250 Mich App 185 (2002), which provides that if jurisdiction has been established by the adjudication of only one parent, the court may then enter dispositional orders affecting the parental rights of both parents. The Court of Appeals denied Laird’s application for interlocutory leave to appeal in an unpublished order, entered January 18, 2013 (Docket No. 313385). The Supreme Court granted Laird leave to appeal. 493 Mich 959 (2013).
Application of the one-parent doctrine impermissibly infringes the fundamental rights of unadjudicated parents without providing adequate process, and the doctrine is consequently unconstitutional under the Due Process Clause of the Fourteenth Amendment. Due process requires a specific adjudication of a parent’s unfitness before the state can infringe that parent’s constitutionally protected parent-child relationship.  [3]
MCL 712A.2(b) governs child protective proceedings generally. MCL 712A.2(b)(1)  gives the family court jurisdiction over a child in cases of parental abuse or neglect.[3]

Child  protective proceedings have two phases: the adjudicative phase and the dispositional phase. [3]

Due process requires a specific adjudication of a parent’s unfitness before the state can infringe that parent’s constitutionally protected parent-child relationship.  [3]
The one-parent doctrine permits the family court to obtain jurisdiction over a child on  the basis of the adjudication of either parent and then proceed to the dispositional phase with respect to both parents. The doctrine therefore eliminates the petitioner’s obligation to prove that the unadjudicated parent is unfit before that parent is subject to the dispositional authority of the court.[3]

Included in the Fourteenth Amendment’s promise of due process is a substantive component that provides heightened protection against governmental interference with fundamental rights and liberty interests, including the right of parents to make decisions concerning the care, custody, and control of their children. A parent’s right to control the custody and care of his or her children is not absolute because the state has a legitimate interest in protecting the children’s moral, emotional, mental, and physical welfare, and in some circumstances neglectful parents may be separated from their children. The United States Constitution, however, recognizes a presumption that fit parents act in the best interests of their children and that there will normally be no reason for the state to insert itself into the private realm of the family to further question the ability of fit parents to make the best decisions concerning the rearing of their children.[3]

The ruling stemmed from a case involving Lance Laird, a one-time Jackson County sheriff candidate. [1]
Laird contested a court’s decision to remove two sons from his home after he tested positive for cocaine. [1]
The court also denied his requests for a trial to determine whether he was fit to parent.  [1]

The boys’ mother, Tammy Sanders, admitted taking drugs with Laird and spent the night at his home despite a court order that prohibited her from having unsupervised contact with children. [1]
One boy previously had been removed from the custody of his mother, Tammy Sanders, in 2011, days after the baby tested positive for cocaine at birth. [1]

He was placed with Laird, whose other son was living with him. Laird is currently in prison for violating federal drug-trafficking laws. [1]
The high court also rejected Monday the Department of Human Services’ argument that Laird’s case should be dismissed because of his imprisonment. [1]
Justices said incarcerated parents can exercise their constitutional right to direct the care of their children. [1]
Department of Human Services spokesman Bob Wheaton said officials are reviewing the decision. [1]
The two dissenting justices, Judge Stephen Markman and Judge David Viviano, disagreed that both parents are constitutionally entitled to a jury trial on their fitness. [1]
Likewise, they wrote, Laird was found to be unfit after several such hearings. [1]
They added that children “in the greatest need of expedited public protection” will receive it “considerably less quickly because both parents are for the first time constitutionally entitled to jury trials.” [1]
Justices in the majority wrote that “in some cases this process may impose a greater burden on the state.”  [1]
However, they continued, “constitutional rights do not always come cheap.”   [1]

n a dissenting opinion, Justice Stephen Markman agreed the state cannot remove a child from a parent's custody or interfere with a person's parental rights unless a court first finds the parent unfit, but he did not believe Michigan laws and procedures prevent this from happening "The statutory provisions and court rules, as they should, presume that parents are fit and require the state to prove a parent's unfitness before the state can remove a child from a parent's custody," his opinion states.[4]
We recognize that the state has a legitimate—and crucial—interest in protecting the health and safety of minor children. That interest must be balanced, however, against the fundamental rights of parents to parent their children. Often, these considerations are not in conflict because “there is a presumption that fit parents act in the best interests of their children.” Troxel, 530 US at 68 (opinion by O’Connor, J.). When the state is concerned that neither parent should be entrusted with the care and custody of their children, the state has the authority—and the responsibility—to protect the children’s safety and well-being by seeking an adjudication against both parents. In contrast, when the state seeks only to deprive one parent of the right to care, custody and control, the state is only required to adjudicate that parent. In this case, for example, there was no constitutional or jurisdictional impediment to disrupting the parental rights of Sanders, who was afforded the right to a determination of fitness. Adjudication protects the parents’ fundamental right to direct the care, custody, and control of their children, while also ensuring that the state can protect the health and safety of the children. Admittedly, in some cases this process may impose a greater burden on the state than would application of the one-parent doctrine because “[p]rocedure by presumption is always cheaper and easier than individualized determination.” Stanley, 405 US at 656-657. But as the United States Supreme Court made clear in Eldridge, constitutional rights do not always come cheap. The Constitution does not permit the state to presume rather than prove a parent’s unfitness “solely because it is more convenient to presume than to prove.” Stanley, 405 US at 658. We accordingly hold that due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship. In doing so, we announce no new constitutional right. Rather, we affirm that an old constitutional right—a parent’s right to control the care, custody, and control of his or her children—applies to everyone, which is the very nature of constitutional rights. Because the one-parent doctrine allows the court to deprive a parent of this fundamental right without any finding that he or he is unfit, it is an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment. We therefore overrule.[3]


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