Sex Offender Registry and Termination of Parental Rights | New Statute

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.

~ ~ ~ ~ ~ ~ ~

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. 

Setting aside whether money should be a controlling factor, in domestic relations cases would this allow a parent to petition to terminate the other parent’s parental rights thereby resolving issues of custody and parenting time while retaining the right to receive child support?  Even if unrelated to the circumstances leading to the SORA registration?  (Not everybody knows (yet) that petitions do not necessarily have to be filed by DHS or the prosecutor’s office.) 

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/

Comments

[Counseling Jacksonville]

It seems to me that a test trial should give some concern to the characteristics of the criminal activity and create the penalties fit the criminal activity.

[Jan Irwin]

This sickens me. I know of men who were involved in "Romeo-Juliet" situations while in their teens that are on the Sex Offender List who are good, responsible parents. This could be devastating, not only to the parent but also the children.

[Jeanne M. Hannah]

Judge Hoort, you make some very interesting points. In my view, it would matter whether the sex offender registration resulted because of specific criminal action directed against the child as to whom the parental termination is directed. In other words, if the registration is for urinating in public, that has little or nothing to do with a propensity for a person to abuse his/her own children.

Even though discretion of the Court could take the above into consideration . . . there is still the potential for refusal to attempt reunification . . . especially in these times of so much work and so little money to go around.

The Parenting Time Statute says, at MCL 722.27a(5):

Notwithstanding other provisions of this act, if an individual is convicted of criminal sexual conduct as provided in sections 520a to 520e and 520g of Act No. 328 of the Public Acts of 1931 and the victim is the individual's child, the court shall not grant parenting time with that child or a sibling of that child to that individual, unless both the child's other parent and, if the court considers the child or sibling to be of sufficient age to express his or her desires, the child or sibling consent to the parenting time.

It seems to me that a trial court should give some consideration to the nature of the crime and make the punishment fit the crime.

As to your last paragraph, I see lots of opportunity for counsel to make a mistake by failing to advise of consequences, thus leaving him/herself open to charge of ineffective assistance of counsel—more appellate issues—and certainly malpractice issues.