GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

I INDIANA

Indiana law provides two general categories of situations when a court may terminate a parent's rights to a child. The first of these is where the parent voluntarily seeks the termination, as when a parent wants to permit a child to be adopted. The second grouping involves cases where the termination is involuntary. In this section we will consider each of these situations. A. Voluntary Termination If a parent or parents of a child wish to voluntarily terminate parental rights, the county office of family and children or a private agency may file a petition with the juvenile or probate court for voluntary termination of parental rights.' Such a petition must contain the following allegations:
1. The parents are either the child's natural or adoptive parents;

2. The mother and father (including the alleged father if the parents were not married) knowingly and voluntarily consent to the termination of their rights; 3. Termination of parental rights would serve the child's best interests; 4. The agency petitioning for termination has developed an alternative plan for the child's care (e.g., an adoptive family has been identifiedj.i After a petition for voluntary termination has been filed, the court must hold a hearing on the petition. The parents must state in open court that they consent to the termination of their parental rights. If the parents do not attend the hearing, the court must find that the parents have consented to the termination in writing. If done in writing the parent must have given that consent before a legally authorized person. The court must establish that the parents were advised of their constitutional and other legal rights as well as the consequences of their act before agreeing to the termination.' If the parents are not present at the hearing, the court may require that the absence be investigated." If the parents are present at the hearing, the court must advise the parents of their constitutional and other legal rights as well as the consequences of agreeing to the termination of their rights.f If the parent is legally incompetent (e.g., due to mental illness or developmental disability), either the court or the guardian of the incompetent parent must consent to the termination. A minor who is a parent may give his or her own consent to termination unless the minor is also legally incompetent for another reason,"

'rc 31-35-1-4(a). rc 31-35-1-4(b). 3 rc 31-35-1-6.

4 5 6

Ie 31-35-1-7.
rc 31-35-1-8. rc 31-35-1-8.

If the court finds that the matters described above are true, that is that the parent wants to terminate his or her parental rights, that permitting the parent to do so would be best for the child and that there is a viable plan for the child, the court must terminate the parents' rights' If any of these things are not true, the court must dismiss the petition. 8 B. Termination Involving Child in Need of Services Indiana law authorizes the juvenile or probate courts to terminate parental rights regarding a child who is a child in need of services or a delinquent. The law controlling termination of parental rights has been amended to reflect changes in federal level. Those changes, however, do not become effective until July 1, 1999. In this section of the materials, we will first discuss current law regarding termination of parental rights then turn our attention to the changes wrought by the recent amendments to the law. 1. Current Law The law of termination first establishes who may petition the court to request termination of parental rights," Those individuals who may petition are the attorney for the county office of family and children, the prosecuting attorney, the child court appointed special advocate (CASA), or child's guardian ad litem. Only these individuals or entities have "standing'r'" to ask the court to terminate a person's parental rights. Notice that this list is very circumscribed. For example, a parent has no legal ability to request that a court terminate his or her rights. Likewise, a legal guardian lacks the ability to bring a termination petition. A petition for termination must clearly state that its purpose is to terminate parental rights. This puts the parent, child and other parties to the case on notice as to what is being requested. At the time of this writing there is only one basis that can be alleged in a termination of parental rights petition, although that one basis has four elements (i.e., subparts that must be proven before the court may grant the request to terminate). The four elements are: 1. That the child has been removed (i.e., placed in foster or some other form of substituted care) from the parent for at least six months under a dispositional decree; OR That the parent has been convicted of one of the following crimes: murder, causing suicide, voluntary manslaughter, involuntary manslaughter, rape, criminal deviate conduct, child molesting, child exploitation, sexual misconduct with a minor, or incest; and the victim of the crime is both:
IC 31-35-1-10. 8Id. 9 IC 31-35-2-4. 10 Standing is a legal concept that means an individual or entity has a right to sue another individual or entity.
7

a. Less than 16 at the time of the crime; and b.the child named in the petition, a sibling of the victim of the crime, or is the child of a spouse of the person whose rights are to be terminated; and 11 2. There is a "reasonable probability" (i.e., it is likely) that either of the following is true: a. the problems that led to the child's removal from the home will continue (i.e., will not be remedied; or b. the continuation of the parent-child relationship presents a threat to the child's well-being; and 3. Terminating the parent's rights will serve the child's best interests; and 4. There is a satisfactory plan for the care and treatment of the child.12 An example may illustrate how this provision works. Imagine a case where a child age two is declared a child in need of services because his mother and father are both addicted to drugs and regularly leave the child unattended for long periods of time. The child is placed into foster care. A treatment plan is put into place that requires the parents to enter a rehabilitation program and to attend parenting classes. After eight months of attempting to persuade the parents to comply with the plan the office of family and children may file a petition to terminate the parents' rights in order to provide the child another permanent home. To be successful, the agency will have to prove each of the elements above. In our example the first element is easily proven simply by referring to the court records. The second element may be proven by demonstrating that the court got involved because of the parents' addiction. Next, the agency will want to explain what efforts were made to get the parents into a treatment program. If the parent has continued to use drugs, this would be critical evidence to present to the court. Then you may need to call a witness that the court would find is an expert in the treatment of substance abuse. This witness could render an opinion as to whether the parents are likely to discontinue their drug usage without completing treatment and to render an opinion as to whether the problem will be otherwise remedied. Also, you may want this witness to explain potential harm to the child that the parents' substance abuse poses. After demonstrating that the parents have not done what is necessary to become fit to care for their child, the inquiry turns to the child's needs. In this regard, the agency must first determine that termination would serve the child's best interests. This may be done by demonstrating that the parents' lack of consistency and the temporary nature of the foster care placement confuse the child. Also, given the child's young age, it is essential that he have a stable caretaker if he is
11 IC 3135-3-4. Note that current law allows the court to terminate after reasonable efforts have been made. After July 1, 1999, the court will have the authority to terminate under these same circumstances without making any efforts to preserve or to reunify the family. 12 IC 31-35-2-4.

to develop normally. Finally, the petitioner must demonstrate that there is a satisfactory plan in place for the long-term care of the child. This may be accomplished by showing that there is an adoptive home available for the child.

2. Law Effective on July 1, 1999 In response to the enactment of the federal Adoption and Safe Families Act of 1997, the Indiana legislature, in early 1998, amended the termination statutes to expand the number of bases upon which the court may terminate parental rights. Note that the previous basis for termination will still be valid, the new law simply expands the number of reasons the court may terminate. a. Reasonable Efforts not Required Under certain circumstances the new law requires that a petition to terminate parental rights be filed.13 This requirement applies to the following situations: 1. Conviction of certain crimes The court has determined that reasonable efforts to reunify the family are unnecessary.i" This finding may be made in the following cases where a conviction for a crime has occured: a. Victim is child or spouse The parent is convicted (in a criminal proceedingj'f of causing suicide, involuntary manslaughter, rape, criminal deviate conduct, child molesting, child exploitation, sexual misconduct with a minor, or incest and the victim of the crime is either the child or the child's parentIFthe victim of the crime is: 1. Less than 16 years old; and either a. The individual's biological or adoptive child; or b. the child of a spouse of the individual; or 2. A parent of the child. To illustrate, consider this example: Ms. Jones, the mother of two children, marries Mr. Smith. After their marriage, Mr. Smith and Ms. Jones have a child
IC 31-35-2-4.5. IC 31-34-21-5.6. 15 The conviction can be in Indiana or any other state.
13 14

together. Mr. Smith then sexually assaults Ms. Jones' oldest child and is convicted of child molesting. In this situation the court may find that reasonable efforts to preserve Mr. Smith's family are unnecessary and terminate his rights in his child. In this same example, if one of the children was killed by an act of child abuse and both Mr. Smith and Ms. Jones were convicted or involuntary manslaughter, the rights of each parent as to each child could be terminated without making any efforts to reunify the children with the parents. Note that if Ms. Jones were convicted of raping Mr. Smith, her rights in their mutual child could be terminated, but her rights in her own children could not be since Mr. Smith was not those children's biological or adoptive parent. b. Murder and voluntary manslaughter-assisting Likewise, reasonable efforts do not have to be made if the parent of a child has been convicted of murder or voluntary manslaughter or of aiding, inducing, attempting or conspiring to commit murder or voluntary manslaughter if the victim of the crime is one of these two groups of people: 1. Less than 16 years old; and is either of the following a.. The convicted person's biological or adoptive child; or b. The child of the convicted person's spouse.

2. The spouse of the individual who has committed the crime. Note that the distinction is that in the case of murder of voluntary manslaughter the individual's parental rights can be terminated ifhe or she helped or is involved in the killing but does not actually do the act. An example may help. Take our earlier case with Mr. Smith and Ms. Jones. If Mr. Smith is a batterer and beats Ms. Jones to death then is convicted of voluntary manslaughter, his rights can be terminated without any attempt to reunify him with his child. Likewise, if Mr. Smith hires a hit man to kill his wife, the state need not try to reunify him and his child. However, if Mr. Smith helps another man rape Ms. Jones and then if convicted of an offense not listed (e.g., aiding an abetting a rape), the state would be under an obligation to try to reunify the family. c. Victim is child Where a parent has been convicted of battery (a physical attack) upon: 1. Hislher child or the child of a spouse; and 2. The child is less than 14 years old; and

3. The assault results in serious injury; then no efforts to reunify the family are necessary.
16

Note that this section is different from the two above because it applies only if the victim of the crime is the child. Unlike the previous two sections, if the parent of the child is the victim, then the state must still make "reasonable efforts" to reunify the family. So, continuing with our example from above, if Mr. Smith beats Ms. Jones with a weapon, say, a living room lamp, and inflicts serious injuries, then is convicted of a felony battery charge, his parental rights cannot be terminated based solely on this conviction. If Mr. Smith does the same thing to one of the children, his rights can be terminated without any effort to rehabilitate him.

2. Prior Termination of Parental Rights The state need not make any effort to reunify a family if the court makes a finding that a parent's rights in another child have been terminated for any of the following reasons: a. The rights were terminated because the child was neglected, abused or a delinquent; or b. The rights were terminated because the parent was convicted of a crime; or c. The parent's rights were terminated pursuant to a similar law in another state. 3. Abandoned Infant The court may terminate without efforts to preserve or reunify if the court determines that the child is an abandoned infant and each of the following is also true: a. The court has appointed a guardian ad litem (GAL) or CASA to represent the child's interests; and b. The court finds that efforts to locate the parents and reunify the family would not serve the child's best interests.!" An example: Ms. Jones subsequently has a child, Alice, and leaves the hospital without taking Alice. Neither Ms. Jones nor the father can be located. The court may declare that efforts to reunify are unnecessary and that the case should proceed immediately. The court must appoint a GAL or a CASA, read the report submitted by the GAL or CASA, hold a hearing, and terminate Ms. Jones parental rights.

16 17

IC 31-34-21-5.6. IC 31-34-21-5.6(b)(5).

II.

MICHIGAN

Michigan's Juvenile Code provides for termination of parental rights in circumstances where children cannot be safely placed with their familics.i'' In order to terminate parental rights, four things must happen.i" First, someone must file a petition filed which requests that parental rights be terminated. Next, the court must find that that petition establishes facts sufficient to bring the child under the jurisdiction of the court (i.e, there must be some abuse or neglect). Then the court must find by clear and convincing evidence 2°that there exists a statutory basis to terminate. Finally, the court must determine that termination of parental rights will serve the best interests of the child. As to this last point, the law presumes that if there is a legal basis to terminate parental rights, then termination by definition will serve the child's best interests. This presumption, however, can be rebutted by a showing that termination clearly will not serve the child's best interests.i' In the following paragraphs we will discuss each of the statutory bases a court may rely upon to terminate the parental rights of an abusive or neglectful parent. A. Desertion or Abandonment 1. Desertion The court may terminate the parental rights of a parent if the parent has deserted the child. Desertion is defined as 28 days if the identity of the parent is not known and the parent has not sought custody of the child during that timeframe. If the parent's identity cannot be ascertained after a reasonable effort to identify and locate the parent, that parent's identity is deemed to be unknown.f In any other situation (i.e., the parent's identity is known), the court may terminate if the parent has not had contact with the child in 91 or more days.23 These two provisions are used frequently to terminate the parental rights of absent fathers. If the father is unknown or if his name is know but his whereabouts are not, and if he has not seen the child in the prescribed number of days, the court may terminate his parental rights. On occasion a parent whose child is in foster care will simply disappear and have no contact with their worker or their child an extended period of time. This may happen in cases where parents have severe drug or alcohol problems. 2. Abandonment
MeL 712A.19(b)(3). See MeR 5.974. 20 This imprecise legal standard is usually described as 75% percent of the evidence. It is a middle of the road standard between the more likely than not standard used in most civil cases and the beyond a reasonable doubt standard used in criminal prosecutions. 21 MeL 712A.19b(5). 22 MeL 712A.19b(3)(a)(i). 23 MeL 712A.19b(3)(a)(ii).
18 19

A recent addition to the law, enacted in part to comply with the federal Adoption and Safe Families Act, permits the court to terminate the rights of a parent if that parent "abused the child or a sibling of the child" by "abandonment of a young child. ,,24The law defines neither "abandonment" nor "young child," so it is difficult to know with precision what the legislature intended. It may be helpful to look to the provision cited above, although that would not, strictly speaking, be controlling. As for "young child," it is the author's belief that this was probably intended to mean an infant under one year of age. While this provision is so new that definitive examples cannot be given, look for this provision to be used where a newborn is left in the hospital at birth and the parents cannot be located. It is certainly possible that in this type of situation the court could deem the child "abandoned" before the passage of 91 or even 28 days. 3. Sexual Abuse There are two separate provisions of Michigan's termination of parental rights statute that address sexual abuse. Each has its own specific requirements and will be considered in turn: a. "Sexual abuse" A long-standing provision of the Juvenile Code has permitted the court to terminate the parental right of a parent if the child or one of the child's brothers or sisters suffered from "sexual abuse,,25 and one of the following is also true: 1. the parent committed the sexual abuse and the court thinks it is reasonable to believe that the child will suffer future abuse if returned to the parent's home; or 2. the parent did not perpetrate the abuse but could have stopped it and the court thinks the child is likely to suffer abuse in the future if returned to the parent's home. b. "Criminal sexual conduct" A new provision, part of the Binsfeld legislation, allows the court to terminate parental rights if the parent abused the child or the child's brother or sister and that abuse involved criminal sexual conduct involving penetration, attempted penetration, or assault with intent to penetrate.i" Where the case involves "criminal sexual conduct" involving penetration or attempted penetration, the Child Protection Law and Juvenile Code now require that the Family Independence Agency petition the court and that that petition request termination of parental rights. Where the sexual abuse involves acts that do not include penetration (e.g., fondling), the FIA must file a petition requesting the court to assume jurisdiction over the child,27 but is not required to request

MCL 7l2A.l9b(3)(k)(i). The Child Protection Law defines "sexual abuse" as engaging in sexual contact (i.e., touching) or sexual penetration (e.g., intercourse or fellatio) with a child. 26 MCL 7l2A.l9b(3)(k)(ii). 27 MCL 722.637.
24 25

termination of parental rights. While these two sexual abuse provisions are similar, a closer look will establish several differences. It is important to note at the beginning that "criminal sexual conduct" is a term used most often in the criminal law. That is, one who is convicted of committing an act of criminal sexual conduct may be sent to prison. The judge in a child protective proceeding cannot send a person to jail. With this in mind, note that the "sexual abuse" provision merely borrows the criminal law's definitions (see the footnote) whereas the "criminal sexual conduct" provision seems to require that the parent has been criminally convicted of a sex offense upon the child that involves penetration (i.e., more than touching). Also, in the second type of sexual abuse, the court does not need to find that the child is at risk of future harm to terminate "the parent's" parental rights. Consider this example: a non-custodial father sexually abuses his son during a visitation by anally raping the child. He is subsequently convicted and sentenced to 25 - 40 years in prison. Although the father is in prison and is unlikely to get out before his son is an adult, the court may still terminate his parental rights, even though there is little reason to believe that he poses any harm to the child's welfare. Also, since this provision permits the court to terminate only the rights of "the parent" who hurt the child, the court could not terminate the mother's rights to the child under this provision of the law. Therefore, if the court believed the mother's rights should be terminated, it would have to have another reason to do so. If in our example the mother knew the father was sexually abusing the boy and took no action to prevent it, her rights could be terminated under the "sexual abuse" provision of the statute.

4. Physical Abuse Recent amendments to the Child Protection Law and Juvenile Code distinguish between severe acts of physical abuse and those acts of child abuse which are not defined as severe.28 At the threshold, then, it is essential to understand how the law defines "severe" physical child abuse. For our purposes, "severe" physical child abuse is present when that abuse results in any of the following injuries to the child:
1. Brain damage (e.g., shaken baby syndrome);

2. Skull or bone fracture; 3. Subdural hemorrhage; 4. Subdural hematoma; 5. Dislocation (e.g., ofa wrist or shoulder); 6. Sprains;
28

Compare 722.637 and MCL 712A.19b(3)k)(iii)

with MCL 712A.19b(3)(b)(i)(ii).

7. Internal injuries; 8. Poisioning; 9. Burns; 10. Scaulds; 11. Severe cuts; 12. Any other injury "that seriously impairs the health or physical well-being of a child.,,29 Whenever a case involves "severe" physical abuse, the FIA is required to file a petition with the juvenile court AND that petition must seek to terminate parental rights.30In addition, the FIA must petition to terminate parental rights if a case involves any of these other forms of physical abuse: 1. Battering, torture; 2. Loss or serious impairment of an organ or limb; 3. Life threatening injury; 4. Murder or attempted murder'" The Juvenile Code permits the court to terminate parental rights in any of these situations.V Any act of physical abuse not included in these rules can result in termination of parental rights if "the child or a sibling of a child suffered physical injury or physical abuse" and: 1. The parent caused the injury or abuse AND the court believes the child is likely suffer from injury or abuse in the future if place with the parent;33 OR 2. The parent had the opportunity to prevent the abuse, did not prevent the injury AND the court believes the child is likely to suffer from injury or abuse in the future if placed with the parent (this section deals with failure to protect."

5. Parental Failure to Rehabilitate

29

30

MeL 722.628(3)(c). MeL 722.638(1)(a)(iii) and (2). 31Id. 32 MeL 712A.19b(3)(k). 33 MeL 712A.19b(3)(b)(1). 34 MeL 712A.19b(3)(b)(ii).

The court may terminate the parental rights of a parent if the parent has shown an unwillingness or inability to rehabilitate himself or herself. Specifically, where six months have passed since the initial dispositional order was entered, the court may terminate parental rights if one of the following two situations also exists: 1. The reasons the court originally took wardship of the child continue to exist AND the court finds that those reasons are unlikely to be changed within a reasonable time to meet the child's needs; OR 2. Other reasons for the court to be involved have surfaced AND a. The agency has recommended services to address these new problems; and b. The problems have not been adequately addressed; and c. The court has given the parent notice that the new problems are an issue; and d. The court has held a hearing as to the new problems at which the parent has had the opportunity to deny that the problem exists or to otherwise defend him/her self against the allegation; and e. The parent has had an opportunity to rectify the newly discovered problem; and f. The court believes that the family's problems are not likely to be resolved within a reasonable amount of time given the child's need for a permanent, stable home cnvironmcnt.f An example will help to illustrate how this complicated provision of the law works. Imagine a case where a six-year-old child is brought to the attention of the court because the child's mother and father are each addicted to drugs and alcohol. As a result of their addiction problems, the parents often leave the child alone for many hours or overnight while they are seeking out and using drugs. The court holds the adjudication hearing and orders the child into the temporary wardship of the court on January 2. The parents deny they have substance abuse problems and refuse to enter treatment. If the parents continue their failure to seek treatment and continue to use drugs and alcohol, any person permitted to under the Juvenile Code could file a petition to terminate the parents' rights on June 2. The court could terminate the parents' rights because six months would have elapsed, the conditions that led the court to get involved in the family's life continue to exist, and, given the parents' denial and refusal to seek treatment, that condition would be likely to continue. In making the decision whether to terminate, the court would have to consider the age of the child, and his or her need for a permanent, stable home environment. Using this same scenario, imagine that after the child has been in care for two months she discloses that while high, her father sexually abused her and that her mother was present when
35

MeL 712A.19b(3)(c).

this happened. A physical exam finds physical evidence to support the child's statements. In this situation, the agency should bring the new allegation to the parents' attention. At this point, a second petition containing the new allegation must be filed. The court will have to hold a hearing and determine whether the new allegations are true. If the court finds the allegations are true, the court must order the parents to engage in services to address the sexual abuse as well as the substance abuse. Imagine that the parents also deny this allegation, again refusing to seek treatment. Just as in the example above, the court could terminate parental rights based on the parents' failure to address the changed circumstance. 6. Guardianship Under certain circumstances, the court may terminate a parent's rights where the child has legal guardian.i" Before discussing the specifics of when a guardianship may result in the termination of parental rights, it will be helpful to have a basic understanding of Michigan's guardianship law. When a court appoints a legal guardian for a child the parents' rights are suspended. That is, the guardian, and not the parent, has the legal authority to make decisions for the child and to have custody of the child. There are two types of guardianship in Michigan. First, a limited guardianship is an arrangement that requires the consent of the parent. A limited guardianship is limited because the guardian has no legal authority to consent to the child's adoption or marriage. Moreover, at the time a limited guardianship is established, the court must also put into place a limited guardianship placement plan. This plan is similar to a case service plan in a child protection case, and establishes what the parent will need to do to regain custody of the child. Typical examples are establishing suitable housing, improve parenting skills, and attend drug treatment. Every limited guardianship placement plan should contain a requirement that the parent visit the child and provide financial support for the child's care. The second type of guardianship is sometimes called full guardianship. The correct legal name is simply guardian (as opposed to "limited guardian"). As you might expect, the limitations described above are not present when a child has a full guardian, and the guardian may consent to the child getting married or adopted. Additionally, the court may grant a guardianship of this type over the objection of the parent. Finally, no plan for reunifying the child and parent put into effect at the time a full guardianship is granted by the court. If the parent requests that such a plan be developed, one may be ordered by the court, either at the time of the original hearing or at any time the parent requests that the child be returned. This plan is called a "court structured plan." Under either type of guardianship, the parent may ask the court to return the child at any time. To accomplish this goal, the parent must demonstrate that he or she has fulfilled his or her obligation under any plan the court has established for reunification. In deciding whether to grant the parent's request to dissolve the guardianship or whether to continue it in place, the court must consider what is best for the child.

36

MeL 712A.19b((3)(d),

(e), and (f).

As mentioned above, in certain circumstances the court may terminate a parent's parental rights if the child has been under a guardianship. If that guardianship is a limited guardianship, the court may terminate the parent's rights if:
1. The parent has "substantially failed" without a good reason (e.g., a good for failure to visit might be that the guardian would not permit visits to take place) to do the things required in the limited guardianship placement plan; and

2. The court finds that the parent's failure has resulted in a disruption of the parent-child relationship.V

The second situation where the court may terminate based on the existence of a guardianship is where there is a full guardian and the court has established a "court structured plan" to reunify and the parent has: 1. "Substantially failed" without a good reason to comply with that plan; and 2. The court finds that the parent's failure has resulted in a disruption of the parent-child relationship. 38 A third guardianship situation may result in termination of parental rights.39 Where there is a full guardian and both of these things happen, the court may terminate parental rights: 1. The parent does not provide "regular and substantial support" (even if that support is not ordered by a court) for the child for a period of two years. Or, where there is a support order from a court (e.g., as part of a divorce case), if the parent has not "substantially" complied with that support order for a period of two years; and 2. The parent has not "regularly and substantially" visited, contacted or communicated with the child over a two year period of time.

Generally, the legal guardian will file the petition in such a case. 7. Proper Care and Custody Michigan's Juvenile Code contains a catchall provision that allows the court to terminate parental "without regard to intent" where the parent "fails to provide proper care and custody" for the child. In order to terminate under this section of the law the court must find that it is unlikely that the parent will J'rovide a proper home for the child within a reasonable amount of time given the child needs," Almost every petition to terminate parental rights contains this
37 38 39 40

MeL 712A.19b(3)(d). MeL 712A.19b(3)(e). MeL 712A.19b(3)(f). MeL 712A.19b(3)(g).

allegation, because unlike the other sections of the termination statute, this provision has no specific technical requirements. 8. Parental Imprisonment If a child's parent is in prison for 2 years or more the court may terminate parental rights ifboth of the following are also found to be true: 1. The parent has not provided "proper care and custody for the child." The "proper custody" requires that the parent make arrangements before FIA becomes involved in the case for another person to be legally responsible for the child (e.g., through establishment of a guardianship );41 and 2. There is no reason to believe that parent will be able to provide proper care and custody within a reasonable time considering the needs of the child. 9. Previous Termination of Parental Rights If a parent's rights to a child have been terminated after a petition for the a court to take custody of the child, that action provides a basis for termination of parental rights as to any child that parent may subsequently have.42 This is true whether the previous termination is the result of chronic neglect of the first child, the termination as to the first child took place for any other legally permissible reason, or the parent released his or her rights after a petition alleging neglect or abuse was filed. To illustrate, suppose FIA files a petition alleging sexual abuse of a child. After the court takes temporary custody of the child based on a finding that the child was sexually abused, the parents release their parental rights. If the parents have a new baby, the court could terminate the parental rights of the parents based solely on the fact that they had had their rights in the first child terminated. 10. Two Step Process It is essential to remember that termination of parental rights is always a two-step process. The first step requires the court to find that one of the nine situations just outlined is present. That is, the first step in the process requires that the court make findings of fact that there is a legal basis for termination of parental rights. Next, the court must then decide whether termination of parental rights would serve the best interests of the child. Having said this, it is critical to understand that under Michigan law, if the court finds there is a legal basis to terminate parental rights, then the law presumes that termination will serve the child's best interests.f So, if the court finds a legal basis to terminate parental rights exists, the court must terminate parental rights unless someone brings forward evidence that demonstrates that termination would not be best for the child.
41 42 43

MeL 712A.2(b)(1)(B). MeL 712A.19b(3)(i), (1), and (m). MeL 712A,19b(5).