In their opinions …

prison cell“[T]he [trial] court and the DHS failed to facilitate respondent’s participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. …

“The court effectively terminated respondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future.

“Incarceration alone is not a sufficient reason for termination of parental rights.”

– Michigan Supreme Court Justice Maura D. Corrigan, writing for the majority in In re: Mason. Dep’t of Human Services v. Mason, et al.

“[T]he majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of [respondent’s] parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent. I believe that the majority has it exactly backwards — respondent is the one who did not do enough to become a better parent.”

– Michigan Supreme Court Justice Stephen J. Markman, dissenting in Mason.

While Richard Mason was doing time for a drunken driving conviction, and then for the resulting probation violation of a larceny conviction, the DHS removed his two sons from Smith, the boys’ mother.

Mason and Smith’s parental rights were eventually terminated when Mason was up for parole. Smith didn’t attend the termination hearing and did not appeal. Mason was there and did appeal. The Court of Appeals shut him down.

But Corrigan, joined by Chief Justice Marilyn Kelly and Justices Michael F. Cavanagh and Robert P. Young Jr., faulted the trial court for not facilitating Mason’s participation by telephone during some phases of the proceedings.

The majority also said the court and the DHS didn’t “ensure[ ] that [Mason] had a meaningful opportunity to comply with a case service plan, or consider[ ] the effect of the children’s placement with his family.”

Markman, joined by Justice Diane M. Hathaway, didn’t see any problem with the extent of Mason’s participation:

Because respondent was incarcerated, he was not present at all the proceedings, but his counsel was always present on his behalf.

Respondent’s counsel indicated that although he wrote to respondent and notified him of the proceedings and of the fact that respondent could participate by way of speakerphone, respondent did not initially respond.

That is, contrary to the majority’s repeated contention that respondent was not informed of his right to participate in the hearings by telephone, respondent’s attorney did, in fact, inform respondent of this right. …

[R]espondent did also, in fact, participate by way of speakerphone during at least two of the proceedings, and he did physically attend the termination hearing.

Markman also took issue with the majority’s conclusion that the DHS and the trial court did do enough to help Mason “become a better parent.” Any mischief here was that of Mason’s own making:

The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.'”

However, the majority disregards two quite significant points.

First, to the extent that respondent was “hamstrung,” this was of his own making — nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.

Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded “no contest” to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”

Justice Elizabeth A. Weaver joined Markman’s dissent in a separate opinion.

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