Today's guest author is Judge David A. Hoort, Family Court Judge in the 8th Judicial Circuit Court in Ionia County, Michigan. Judge Hoort writes about his concerns with a new statute affecting termination of parental rights that became effective a few days ago.
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Along with murder, voluntary manslaughter and felonious assault that results in serious bodily injury of another child, MCL 712A.19a(2)(d), as amended, effective May 1, 2012, now provides that if a parent is required to register under the sex offenders registration act, the department of human services is not required to make reasonable efforts to reunify the child with the parent.
Critics argue that this will allow the family court to terminate a parent's parental rights to a child for no other reason than a parent being required to register under the Sex Offenders Registration Act (SORA). (Past law required that there be some showing of ‘unfitness’ before parental rights can be terminated.) Advocates counter that judges retain discretion to order DHS to make reasonable efforts to reunify the child with the parent, and the legislation was needed to receive federal funding.
The Michigan Supreme Court held in In re Beck, 488 Mich 6 (2010) that even after a parent’s rights have been terminated, the obligation to support continues unless a court of competent jurisdiction modifies or terminates the obligation. Under MCL 722.3 a court has the discretion to terminate or modify a parent’s obligation to provide support, but is not compelled to do so.
In criminal cases does this then require advising a defendant that his/her plea to an offense resulting in registration under the SORA could result in a termination of his/her parental rights? Even if unrelated to the existing charge? The United States Supreme Court held in Lafler v Cooper, 566 US ___ (2012) that an ineffective assistance of counsel claim may be based on counsel’s failure to properly inform the defendant of the consequences of accepting or rejecting a plea offer. Counsel’s assistance must be sufficient to enable the defendant the defendant “to make an informed and voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446 (1995).
Judge David A. Hoort is a Family Court Judge in the 8th Judicial Circuit Court, Ionia County, Michigan. He maintains his own blog, which you may visit here: http://judgedavidhoort.blogspot.com/