When a court assumes personal jurisdiction of a parent for abuse or neglect of the parent’s child and the child is removed and placed with the Department of Health and Human Services (DHHS), MCL 712A.19a(2) provides that:

Reasonable efforts to reunify the child and family must be made in all cases except if any of the following apply:

(a) There is a judicial determination that the parent has subjected the child to aggravated circumstances as provided in section 18(1) and (2) of the child protection law, 1975 PA 238, MCL 722.638. [...]

(d) The parent is required by court order to register under the sex offenders registration act.

MCL 722.638(18)(1) provides for only one exception that relates to criminal sexual conduct:

The department shall submit a petition for authorization by the court under section 2(b) of chapter XIIA of 1939 PA 288, MCL 712A.2, if 1 or more of the following apply:

(a) The department determines that a parent, guardian, or custodian, or a person who is 18 years of age or older and who resides for any length of time in the child’s home, has abused the child or a sibling of the child and the abuse included 1 or more of the following: [...]

(ii) Criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate. If an exception applies, DHHS may proceed directly to a request for termination of parental rights without attempting reunification. The exceptions under MCL 722.638 include sexual abuse of siblings of the parent’s child as well as the parent’s biological child. In In re Jenks,¹ the Michigan Court of Appeals concluded that a 1997 amendment to MCL 712A.19b(3)(b)(i) defined “sibling” to include a half-sibling and a step-sibling — neither of whom are biological children of the parent. I will use the term “related child” to refer collectively to a biological child, the biological child’s half-sibling, and the biological child’s step-sibling.

In sum, if a parent has sexually abused an unrelated child but is not a registered sex offender, it would appear that reunification efforts are statutorily mandated.

MCL 28.722 and 28.723 provide that an individual is only required to register under the sex offenders registration act if the individual is criminally convicted of a listed offense. For a child protection adjudication, MCR 3.972(C)(1) provides that proof of any relevant fact requires a lesser standard of a preponderance of the evidence. It is conceivable, then, that in a child protection case, a parent who is not a registered sex offender could be found by a preponderance of the evidence to have sexually abused an unrelated child, but reunification efforts with the parent’s biological child would be mandatory. It is difficult to conceive of reunification services that could convince a trial court that reuniting a parent with his or her child would ever be safe if the parent has sexually abused an unrelated child. But an even more quizzical question is presented: can the trial court even gain jurisdiction over a parent for sexual abuse of an unrelated child?

This question was raised in the unpublished Michigan Court of Appeals case of In re Johnson.² The respondent father had been criminally convicted of sexual abuse of an unrelated minor. The trial court found jurisdiction based on the conviction and his imprisonment. The respondent’s parental rights were terminated at a disposition immediately following the adjudicatory hearing. The Court of Appeals reversed, finding that the offenses were committed against an unrelated minor and there was no evidence that his child was affected by his offenses. On those facts, the court found that the trial court lacked jurisdiction and without proper jurisdiction, termination of parental rights was also found to be improper.

However, in the unpublished case of In re Smith issued June 7, 2018, the Court of Appeals reached the opposite conclusion.³ The trial court found jurisdiction based on the fact that the respondentmother was in a romantic relationship with a man with a criminal sexual history involving minors. The Court of Appeals affirmed the finding of jurisdiction (and eventually termination of parental rights) and invoked the doctrine of anticipatory neglect. As the court noted, “Respondent attempts to minimize these allegations of present risk of harm to [the minor], but these allegations were serious, more than merely anticipatory, and not frivolous.”⁴ The order terminating parental rights was affirmed, in part, based upon MCL 712A.19b(3)(j), which allows termination when “[t]here is a reasonable likelihood, based on the conduct or capacity of the child’s parent, that the child will be harmed if he or she is returned to the home of the parent.” The conflict between the cases is significant. Where a parent has sexually abused an unrelated minor, the doctrine of anticipatory neglect more logically supports an irremediable risk to the parent’s biological child than when the parent is simply in a relationship with a person who has sexually abused a minor.

A middle-ground approach, given the diametrically opposed conclusions of the Johnson and Smith cases, is that a trial court could assume jurisdiction over a parent who has sexually abused an unrelated minor, but reunification efforts would have to be ordered. But can the parent ever cast doubt on the termination ground of MCL 712A.19b(3)(j) that, based upon the parent’s conduct, the child would be harmed if returned to the care of the parent? Can reunification efforts ever assure a trial court that the offending respondent parent would never sexually abuse his or her related child?

A simple solution to the dilemma would be for the Michigan Legislature to amend MCL 712A.19a(2) or MCL 722.638 to provide that reunification efforts are not required if the parent is alleged to have sexually abused any minor child. DHHS would then be permitted to seek termination of parental rights at the initial disposition. MCL 712A.19b(3)(b) might also have to be amended because as written, that statute only permits termination of parental rights if “the child or a sibling of the child” has suffered sexual abuse by the parent. The article “the” in the statute arguably refers to a child of the parent or a sibling of that child and not to an unrelated child.

Of course, the allegation of sexual abuse of an unrelated child would have to be proven with admissible evidence at the adjudicatory trial, and that termination of parental rights to the biological child would be in the child’s best interests. This approach requires a presumption that a person who sexually abuses an unrelated minor poses a risk to sexually abuse any minor — even his or her biological child. Such a presumption does not seem any less well-founded, and perhaps is more well-founded, than the already existing presumption under MCL 712A.19a(2)(d) that a parent who is required to register as a sex offender poses a risk to his or her biological child. It might be helpful to a trial court if expert testimony regarding that risk were introduced at the adjudicatory trial.

CONCLUSION

MCL 712A.19a(2), 722.638, and 712A.19(b)(3)(b) could be amended to allow that reunification efforts are not required if there is a preponderance of evidence that the parent had sexually abused his or her child or an unrelated child. It might be helpful to a trial court if expert testimony established that there is an increased risk of sexual abuse of the biological child if the unrelated child had been sexually abused.