Parental Facilitation of Sexual Abuse Constitutes “Aggravated Circumstances”: A Commentary on In re Barber/Espinoza, Supreme Court of Michigan (2025)

1. Introduction

The Michigan Supreme Court’s unanimous decision in In re Barber/Espinoza establishes a pivotal clarification of what qualifies as “aggravated circumstances” under Michigan’s child-protection scheme. The question placed before the Court was whether a parent who facilitates or knowingly allows sexual penetration of a child—without personally committing the penetration—has nonetheless “abused” the child in a manner that (i) satisfies MCL 722.638(1)(a)(ii) and (ii) relieves the Department of Health and Human Services (DHHS) of its usual statutory duty to provide reunification services before seeking termination of parental rights.

The case arose after disturbing disclosures by minor CB that her mother (respondent) exchanged her for drugs and allowed repeated sexual assaults. DHHS petitioned to terminate the mother’s rights to CB and her sibling ME at the initial dispositional hearing, triggering the statutory “fast-track” pathway that bypasses reunification efforts. The trial court granted termination, the Court of Appeals reversed, and the Supreme Court has now reinstated the termination while issuing an authoritative construction of the governing statutes.

2. Summary of the Judgment

• Statutory Holding. A parent “subjects the child to aggravated circumstances” under MCL 722.638(1)(a)(ii) when the parent facilitates criminal sexual conduct (CSC) involving penetration, even if the parent is not the individual who performs the penetration.
• Combined Requirements. When both subsections (1) and (2) of MCL 722.638 are met, DHHS is excused from reasonable-efforts obligations (MCL 712A.19a(2)(a)), and the trial court may proceed directly to termination at the initial disposition (MCL 712A.19b(4)).
• Application to Facts. Respondent’s act of trading her child for drugs constituted child “sexual exploitation,” therefore “child abuse,” and the abuse “included” CSC-penetration by a third party; she thus placed both CB and sibling ME at unreasonable risk of harm.
• Procedural Error. The trial court failed to advise respondent of her right to appeal the removal order (MCR 3.965(B)(15))—a plain error—but it did not affect substantial rights, so reversal was unwarranted.
• Outcome. Court of Appeals reversed; trial court’s order terminating parental rights reinstated.

3. Detailed Analysis

3.1 Precedents and Authorities Cited

1. In re Lange, ___ Mich ___ (2025) – confirms two-phase nature of child-protective proceedings.
2. In re Hicks, 500 Mich 79 (2017) – articulates DHHS’s general duty to make reasonable reunification efforts.
3. In re Simonetta, 507 Mich 943 (2021) – requires clear & convincing evidence before aggravated-circumstances exemption applies.
4. In re Ferranti, 504 Mich 1 (2019) – outlines plain-error framework and parents’ due-process protections.
5. In re AJR, 496 Mich 346 (2014) – distinguishes physical vs. legal custody; relevant to removal analysis.
6. Unpublished Court of Appeals opinions: In re Boyce (2020) & In re Bergren (2021) – discussed but not followed; Supreme Court clarifies perceived conflict.

3.2 Statutory Interpretation & Legal Reasoning

The Court’s reasoning turns on the text of MCL 722.638 and its incorporation by reference in MCL 712A.19a(2)(a). Key steps:

1. Scope of “Abuse.” The Court looks to the Child Protection Law definition: “child abuse” includes harm through “sexual exploitation” (MCL 722.622(g)). Sexual exploitation, in turn, includes “allowing, permitting, or encouraging a child to engage in prostitution” (MCL 722.622(r)). Respondent’s drug-for-sex arrangement clearly falls within this.
2. “Included” Criminal Sexual Conduct. MCL 722.638(1)(a)(ii) does not require the parent to have personally penetrated the child; it requires that the abuse included penetration. By facilitating the penetration, respondent satisfies the clause. The Court rejects the Court of Appeals’ narrower reading that only penetration by the parent qualifies.
3. Sibling Extension. Because the statute speaks of abuse to “the child or a sibling,” CB’s exploitation automatically triggers aggravated circumstances for sibling ME as well.
4. Subsection (2) Add-On. Respondent “placed the child at an unreasonable risk of harm” and failed to intervene, meeting MCL 722.638(2). When (1) and (2) converge, DHHS must request termination at the initial disposition, and reasonable efforts are waived under MCL 712A.19a(2)(a).
5. Evidentiary Standard. Clear and convincing evidence existed: CB’s credible testimony, corroborated details, and respondent’s drug use pattern.
6. Plain-Error Issue. Although the trial court omitted advice-of-appeal, respondent could not show a different outcome because aggravated circumstances were correctly found; thus, no substantial-rights impact.

3.3 Impact of the Decision

• Precedential Clarification. Resolves ambiguity among lower courts regarding whether facilitation or acquiescence to CSC qualifies as aggravated circumstances. The answer is yes, thereby broadening (but also clarifying) the statute’s reach.
• Practice for DHHS. Case workers and counsel must now recognize that any evidence a parent enabled sexual penetration—payment, barter, or mere allowance—triggers a mandatory petition that seeks termination without services.
• Litigation Strategy. Parents’ counsel must understand that challenging aggravated-circumstance findings now centers on disputing facilitation or the clear-and-convincing threshold, not arguing that “someone else did the penetration.”
• Protective Proceedings Timeline. Courts may expect more “one-phase” terminations where facilitation of CSC is alleged, expediting permanency for victimized children.
• Due-Process Safeguards. Decision emphasizes that the aggravated-circumstances path is “rare” and prescribes a cautious, evidence-heavy approach; trial courts remain obliged to articulate findings with precision.

4. Complex Concepts Simplified

Aggravated Circumstances

Specific, statutorily enumerated situations so severe (e.g., egregious abuse, prior murder of a child, certain sex offences) that the law assumes reunification efforts would be futile or harmful.

Clear & Convincing Evidence

Higher than “preponderance” but lower than “beyond a reasonable doubt”; the fact-finder must have a firm belief the contention is true.

Initial Dispositional Hearing

The first hearing after a court takes jurisdiction over the child; usually reserved for crafting a service plan but, under certain exceptions, may include immediate termination.

Child Exploitation / Prostitution

Any act of obtaining benefit (money, drugs, etc.) in exchange for permitting sexual activity with a minor, whether or not labelled “prostitution” in everyday speech. Legally, benefit in kind (e.g., drugs) counts.

Plain Error

A clear or obvious mistake affecting substantial rights; may warrant reversal if it seriously affects the fairness or integrity of proceedings.

5. Conclusion

The Supreme Court’s decision in In re Barber/Espinoza crystallises an essential protection for children: a parent who hands a child over for sexual exploitation cannot claim insulation merely because someone else performed the physical assault. By treating facilitation as tantamount to direct abuse, the Court ensures that bureaucratic technicalities will not obstruct immediate, decisive intervention when children face the gravest harms.

Practitioners should view this ruling as both a warning and a guide. For DHHS, it is a mandatory playbook when confronted with parental facilitation of CSC. For judges, it underscores the meticulous statutory findings required to bypass reunification. For defense counsel, it signals that the battleground is factual sufficiency, not statutory interpretation. Ultimately, the ruling strengthens Michigan’s child-protection framework while reaffirming that the aggravated-circumstances exception remains narrow, reserved for the most egregious betrayals of parental duty.