Withdrawal of the petition to terminate; MCL 722.638(1)(b)(i); Health & safety; 42 USC § 671(a)(15); Due process; In re Gach; Jurisdiction & anticipatory neglect; Abandoned issue; Lawyer-guardian ad litem (LGAL)

The court affirmed the trial court’s rulings allowing the DHHS “to withdraw a petition for termination of respondent-father’s parental rights to his minor child, OLE, and denying termination of respondent-mother’s parental rights[.]” The LGAL asserted that the trial court erred by permitting petitioner to withdraw the petition for termination of the father’s rights, noting that the DHHS filed a mandatory petition. The LGAL’s argument focused “only on the language concerning the prior termination of respondent-father’s parental rights and ignores the directive for petitioner to determine whether ‘there is a risk of harm’ to the child and whether the parent has rectified the conditions that led to the prior termination.” Also, the language stated that the DHHS, “rather than the trial court, must determine the existence of the three separate conditions.” No language in the statute at issue here, MCL 722.638(1)(b)(i), “supported the LGAL’s claim that the DHHS ‘was required to pursue the petition to adjudication after it determined that not every condition existed.’” Hence, the DHHS “was not required by MCL 722.638(1)(b)(i) to follow through on the petition to terminate [the father’s] parental rights when it could not determine that the three specified conditions listed in the statute existed.” Thus, the trial court did not err by allowing the DHHS to withdraw the petition. The LGAL also asserted “that OLE’s health and safety were protected by [§] 671(a)(15), but the trial court ignored the statutory considerations when it permitted the DHHS to withdraw the petition.” The LGAL’s reliance on § 671(a)(15) “does not support her argument because it does not provide OLE with enforceable federal rights.” The LGAL asserted that the trial court erred by allowing the DHHS “to withdraw the petition for termination of [the father’s] parental rights because it deprived OLE of procedural due process.” In Gach, the court “determined that because MCL 712A.19b(3)(l) did not provide any method to rebut the presumption of unfitness arising from the prior termination, the statute failed ‘to comport with due process in light of the fundamental liberty interest at stake.’” In this case, in contrast, the LGAL cited “the right to procedural due process for the proposition that petitioner is obligated to seek termination of parental rights, which is a far cry from the claim of constitutionally impermissible termination of parental rights that carried the day in” Gach[.]