Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  December 18, 2015                                                                  Robert P. Young, Jr.,
                                                                                                Chief Justice

  152404                                                                              Stephen J. Markman
                                                                                           Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  In re JACKSON, Minor.                                                                    Joan L. Larsen,
                                                          SC: 152404                                 Justices
                                                          COA: 325838
                                                          Ingham CC Family Division:
                                                          14-001407-NA
  _____________________________________/

        On order of the Court, the application for leave to appeal the July 28, 2015
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         The Court has become aware that, during the pendency of this appeal, the trial
  court finalized the adoption of the minor child, in violation of In re JK, 468 Mich 202
  (2003). It appears that no one informed the trial court of the father’s appeal of the
  termination of his parental rights. In order to prevent any recurrence of the problem, we
  ORDER any trial court finalizing an adoption to provide the following findings on the
  record:

         I have determined that any appeal of the decision to terminate parental
         rights has reached disposition, that no appeal, application for leave to
         appeal, or motion for rehearing or reconsideration is pending, and that the
         time for all appellate proceedings in this matter has expired.


         MCCORMACK, J. (concurring).

         I concur with the Court’s decision to deny leave to appeal because I believe that
  the respondent-father received sufficient notice that the prior termination of his parental
  rights could be used as a ground for terminating his parental rights in this case. I write
  separately, however, to articulate more generally my reservations about using
  MCL 712A.19b(3)(l) as a statutory basis for termination.

         “[T]he interest of parents in the care, custody, and control of their children is
  perhaps the oldest of the fundamental liberty interests . . . .” Troxel v Granville, 530 US
  57, 65 (2000) (opinion by O’Connor, J.) (punctuation omitted).                  Parents are
  constitutionally entitled to have their fitness adjudicated before the state may infringe on
  this constitutionally protected relationship. See, e.g., In re Sanders, 495 Mich 394, 422
  (2014); Stanley v Illinois, 405 US 645, 658 (1972). And when the state seeks to
  adjudicate a parent’s fitness it must be done through fundamentally fair procedures. See,
  e.g., Santosky v Kramer, 455 US 745, 769 (1982) (requiring the state to establish a
  parent’s unfitness with clear and convincing evidence); see also MCL 712A.19b(3).
                                                                                           2


       MCL 712A.19b(3)(l) permits termination of a parent’s rights to his or her child if
the state can establish that the parent’s rights to another child were involuntarily
terminated in a prior proceeding. There is no requirement that the prior adjudication be
proved relevant or material to the current allegations against the respondent. By
requiring only that the state establish a prior involuntary termination,
MCL 712A.19b(3)(l) creates a statutory presumption that a parent is unfit to parent a
child presently before the court. In my view, this presumption excuses the state from
having to meet its evidentiary burden before infringing on a parent’s constitutionally
protected relationship with his or her child. Other state courts have addressed this
concern when their states’ analogous statutory presumptions were challenged by
requiring the state to proffer additional evidence of the parent’s unfitness to parent the
child currently at issue. See, e.g., In re JL, 20 Kan App 2d 665, 672-673 (1995) (holding
that a Kansas statute creating a statutory presumption of unfitness based on a prior
termination can be rebutted by any evidence supporting a finding of fitness); Florida
Dep’t of Children & Families v FL, 880 So 2d 602, 609 (Fla, 2004) (holding that a
parent’s rights may only be terminated on the basis of a similar Florida statutory
presumption if the state also establishes that there is “a substantial risk of significant
harm to the current child”).

        The statutory presumption at issue in MCL 712A.19b(3)(l)—that a parent’s
unfitness may be based solely on a prior involuntary termination—raises significant
constitutional questions that are not complained of in this case but nevertheless trouble
me. When someone is accused of a crime, due process does not permit the state to put
forth evidence of a prior conviction as sufficient proof to convict him or her of the new
charge. To the contrary, we go to great lengths to provide an accused with fair process
that does not allow his or her criminal history to play a role in the present adjudication. I
do not see why similar process is not due a parent in jeopardy of losing the constitutional
right to control the care and custody of his or her children.

      My concerns regarding the constitutionality of MCL 712A.19b(3)(l)
notwithstanding, I concur with the Court’s decision to deny leave to appeal in this case
because the respondent-father has complained only of the Court of Appeals’ sua sponte
use of his prior termination as grounds to uphold the trial court’s result specifically
                                                                                                              3

because, the respondent argued, there was no finding that his prior termination did not
violate Sanders, 495 Mich 394. There is no evidence, however, that the respondent-
father’s prior termination was impermissible under Sanders or that he was unaware his
prior termination could be used to terminate his parental rights. The respondent-father
directly appealed the trial court’s termination of his parental rights under
MCL 712A.19b(3)(i), which permits the state to terminate a parent’s rights on the basis
of a prior termination that involved serious and chronic neglect or physical or sexual
abuse and a showing that the parent has not been rehabilitated; thus, the respondent was
plainly aware that his prior termination was at issue in the present proceeding.
Accordingly, I am not persuaded that the respondent-father’s arguments merit further
review.




                        I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        December 18, 2015
       p1215
                                                                            Clerk
