UPDATES IN MICHIGAN FAMILY LAW

Rationale of unpublished case adopted by court of appeals

In re Jordan, ___ Mich App ___ ; ___ NW2d ___ (2008), Court of Appeals Docket No. 276924 decided February 12, 2008, the lower court terminated the parental rights of the mother to her six children. The court also terminated the parental rights of the biological father of one of her children. He then appealed, claiming that the trial court erred in using his conduct prior to the time he established parentage against him. The court of appeals disagreed and affirmed the lower court, establishing an important legal precedent.

Equally important was the court of appeals’ adoption of the rationale used in an unpublished case. Family law cases rarely are published and many lawyers believe that it’s wrong to cite an unpublished case. Yet in this area of practice, the specific facts of a case are usually determinative of the result. Thus, when an unpublished case has a factual pattern similar or identical to the one at bar, I and many lawyers whom I know and respect often cite unpublished opinions. From time to time, the court of appeals has said that such cases with similar fact patterns "are instructive," even if not binding upon a court.

Who Has the Right to Make End-of-Life Decisions?

On January 16, 2005, Massachusetts' highest court ruled that the state can withdraw life support from Haleigh Poutre, an 11-year-old girl who was kicked and nearly beaten to death. She has been in a coma since September; her adoptive mother and stepfather are accused of abusing her.
Since Haleigh's assault, her aunt Holli Strickland, who had adopted Haleigh, has died in an apparent murder-suicide, and her husband is being held in connection with the injuries Haleigh suffered.

The state Department of Social Services, which was granted custody of Haleigh after her severe injuries, successfully petitioned a juvenile court for permission to remove life support. Mr. Strickland challenged the state in court, asking to be considered Haleigh's de facto parent and to be allowed to argue for keeping her alive.
The court's opinion noted a long history of complaints about abuse and neglect of Haleigh to the Department of Social Services since September 2002. Since 2004, Haleigh had been receiving regular counseling. The DSS had been making monthly visits to her home, yet inexplicably, did not uncover  the extent of Haleigh's abuse.

"Some describe this as a case about death," the opinion said. "It should more correctly be described as a case about a young girl who has suffered tremendously from acts of violence and cruelty and who now will be permitted to pass away with dignity."

The opinion added that Haleigh's "memory will remind us, time and again, that we, as a society, need to do more to aid children who are neglected and abused, and thereby denied the care and nurturing they so desperately want and need."

Read the full report in the New York Times.

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