In re HRC et al. – in camera interviews

The Court of Appeals issued another published opinion.  The case involved whether the trial court may conduct unrecorded in camera interviews with minor children to determine best interests.  The CoA held that a trial court may not conduct in camera interviews with minor children in a juvenile proceeding.

In this case, following a hearing on a petition to terminate parental rights, which contained testimony regarding both statutory basis for termination and best interests, the trial court indicated it was not prepared to make a best interests determination.  The trial court conducted in camera interviews with all of the children.  Subequently, the trial court found termination was in the children’s best interests without making reference to the types of questions asked or the information disclosed by the children.

An in camera interview is an ex parte communication off the record in a judge’s chambers and in the absence of the other interested parties and their attorneys.  Generally, these ex parte communications are not permitted except as provided by law.  Michigan Code of Judicial Conduct, Cannon 2.   The Court of Appeals ruled there is no statutory provision or other caselaw that permits a trial court in a juvenile proceeding to conduct an in camera interview.    The Court distinguished juvenile proceedings from custody proceedings under the Child Custody act, which does contain a provision for in camera interviews with children for a very limited purpose. MCL 722.21.  Without an analogous provision in juvenile law, such interviews are impermissible.

The Court also found that the use of unrecorded in camera interviews in termination proceedings violates parents’ due process rights.  Due process requires fundamental fairness, which will involve consideration of the private interest at stake, the risk of erroneous deprivation of such interest through the procedures used, the probable value of additional or substitute procedures and the state or government interest, including the function involved and the fiscal or administrative burdens imposed by substitute procedures. In re Brock, 442 Mich 101, 111; 499 NW2d 752 (1993).   The Court balanced the parent’s fundamental liberty interest in the care and custody of his or her child and the threat of permanently losing that interest against the state’s interest in the welfare of the child. The Court also considered the risks of an erroneous deprivation of parental rights given the nature of the in camera interview in light of the low probative value of the in camera procedure and the risk of unduly influencing a judge’s decision.  The Court ruled that the use of an unrecorded and off the record in camera interview in the context of a juvenile proceeding, for whatever purpose, constitutes a violation of parents’ fundamental due process rights.

The Court remanded the case to a different trial court judge to make findings as to each child’s best interests before deciding to terminate parental rights.

You can view or download the case here: In re HRC, et al

HB 5676 – Michigan Public Defense Act

This week Michigan State Representatives Constan and Amash introduced HB 5676, which would create the Michigan Public Defense Act.  The bill has been referred to the Judiciary Committee in the State House.  It would create a statewide public defense system that includes representation for juvenile delinquents.

Here is a summary of the highlights of the bill with an emphasis on juvenile defenders:

• A state-wide public defender service would be created to provide public defense throughout the state.
  • The state service would provide defense for indigent criminal defendants and juvenile respondents.
  • The bill would allow for contract public defense services.
  • Indigence would be defined as having an income not more than 133% of the federal poverty level.
  • Juvenile indigence would be determined by whether the parents would be eligible for public defense services or if they are unwilling to retain counsel to represent the juvenile.
• A public defense commission would be established to create policy for the state system.
  • The commission would consist of 9 members appointed by the governor.
  • At least one member would have experience representing juveniles in delinquency proceedings.
• A state office of public defense would be created within the judicial branch to administer the system.
  • The state public defender would be appointed by the commission to head the office of public defense.
  • All state public defender employees would be considered employees of the judicial branch.
  • Compensation for full-time public defenders and staff would not be less than the compensation of assistant prosecutors and staff with comparable duties in the region.
• Regional offices would be created under the supervision of a regional public defender.
  • The state public defender would establish regional offices headed by regional public defenders.
  • The bill would allow for contract public defense offices also.
• The bill would create an appellate bureau, headed by a chief appellate defender, to oversee appellate defense.

This bill is a step in the right direction.  I would have liked to have seen inclusion of LGALs and parent representation in child protective proceedings, but these budget times do not allow us to be greedy.

I think the political reality is that the state must adopt some sort of public defense system before the Federal government imposes one.  I doubt Lansing wants Washington to force its hand.  This may motivate the state legislature to take some action on this.  There is additional pressure because the U.S. Justice Department is considering a lawsuit over Michigan’s public defense system.  However, I would not expect the state to act too quickly on this.  The introduction of this legislation may be intended to stall the Federal government (a sub-committee of the U.S. House held hearings on Michigan’s public defense system – or lack of – earlier this year).  The legislature may play a game of kick the can with this legislation as long as it can get away with it.

MIRS, a well-respected Capitol newsletter, reports House Judiciary Chair Rep. Mark Meadows intends to have the legislation passed on the floor in February.  According to Rep. Meadows, the biggest concern is cost.  The goal is to make it expense-neutral for the state.  Currently, counties foot the bill.  Thus, funding would have to come from the counties.

Does anyone have any thoughts on the public defender model of indigent representation? Leave your comments.

You can follow the bill here: HB 5676

Graham v. Florida; Sullivan v. Florida – Life Imprisonment for Juveniles

Last month the United States Supreme Court heard oral argument on two cases addressing whether juveniles may be sentenced to life imprisonment – Graham v. Florida and Sullivan v. Florida. Joe Harris Sullivan, now 33,  was sentenced to life in prison at age 13 for raping a 72-year-old woman in Pensacola, Florida.  Terrance Jamar Graham was 16 when he robbed a restaurant in Jacksonville.  Both prisoners had long rap sheets before they received life sentences.  The issue before the court in these cases is whether the Eighth Amendment’s ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.

Based on the questions and statements by the justices at oral argument, it appears the Court is divided along the typical right / left lines.  Those on the left are looking for a bright line test similar to the one established by the Supreme Court in Roper v. Simmons in 2005, whereby juveniles under the age of 18 could not be sentenced to death.   Those justices on the right, represented by Justices Alito and Scalia, simply do not believe the Eighth Amendment makes any distinctions regarding age.  Justice Roberts proposed requiring trial judges to take age into account before sentencing juvenile offenders to life without parole, a compromise stand that appeared aimed at winning over Justice Anthony Kennedy, who usually is the swing vote on this Court.

The arguments that life sentences for juveniles in non-homicide cases is based on the premise that the punishment does not fit the crime because juveniles are not as culpable for their actions as adults.  This is because of the development of the juvenile brain and life in prison denies any chance at rehabilitation.  The opposing side takes the view that punishment is not the only thing to be considered in criminal sentencing.  The Court must also consider retribution, or the public’s right to punish the juvenile severely for particularly heinous crimes. By closing the door on life imprisonment, the public is denied the opportunity to impose this severe sanction.

Aside from the punishment vs. retribution argument, there is also the issue of whether the Court should adopt bright line tests.  Chief Justice Roberts argues judges should balance the child’s age against the heinousness of the crime.  Both the left and the right see the issue as an all or nothing proposition.  For the juvenile practitioner, it is easy to jump on to Chief Justice Roberts’ totality of the circumstances approach.  We understand that each child’s rate of development is different and we are accustomed to using expert evaluations to determine what level of understanding the child had of his or her crime and what treatment methods would be most effective to rehabilitate the child.  However, we must also be aware of the fact that making case-by-case determinations result in wildly different approaches.  This undermines the predictability that is critical in our system of justice.

These cases clearly have implications on Michigan Law.  Under MCL 712A.18(m), in designated cases, the court “impose any sentence upon the juvenile that could be imposed upon an adult convicted of the offense for which the juvenile was convicted.”  This includes life imprisonment.  Because these cases would directly impact Michigan Law, I thought it was good subject matter for this web site.

What rule do you think the U.S. Supreme Court should use in these cases – a bright line test one way or another or give judges discretion to sentence to life in prison based on the age of the child and other factors?

In re Mason – Application for leave to MSC

As I reported on Friday, the Michigan Supreme Court has agreed to take up In re Mason, a termination of parental rights case.  John Bologna is the attorney for Respondent Father.  I wrote to him on Friday asking for a copy of his application for leave to appeal.  He kindly emailed me a copy, which I have made available for download below.  Today, my husband bumped into John at the Oakland County Courthouse.  My husband tells me that John is obviously pleased with the way the Michigan Supreme Court has framed the issues and he sees many similarities between this case and In re Rood.   It appears the trend in the Court is to look very closely at insuring that reasonable efforts are made.   I think the issues we will be seeing addressed are what reasonable efforts must be made for non-custodial and incarcerated parents before terminating their parental rights.

What do you think?

You can view or download the Application for Leave to Appeal here: In re Mason (Application for Leave)

The document is in Microsoft Word (.doc) format.  If you have trouble downloading it, just wait until this evening when I will have my husband convert the filed to Adobe Acrobat (.pdf) format.

In re Mason: Mi Supreme Court takes up termination case

If you haven’t been able to tell from the activity on this site over the past year, 2009 has been a banner year in the area  of child protection law.  From the looks of things, this trend will continue into 2010.  Yesterday, the Michigan Supreme Court agreed to take up a termination of parental rights case, In re Mason.

The case involves the termination of Respondent father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j).  The Court of Appeals opinion was issued September 15, 2009.   The opinion is only three paragraphs long and affirms the termination of Respondent Father’s parental rights pursuant to MCL 712A.19b(3)(g), (h), and (j).  It held termination under MCL 712A.19b(3)(c)(i) was harmless error – probably because the three other statutory grounds for termination were affirmed.

The opinion indicates that Respondent Father was jail when the children first came into care, but was later sentenced to 3 to 10 years in prison.  The CoA affirmed the trial court’s finding that while his earliest release date was July 2009, there was no evidence that he was likely to be paroled at that time and even if he were, he would require at least six months to demonstrate a stable lifestyle.  The CoA also rejected his argument that the trial court erred in failing to hold a separate best interest hearing, holding that on a supplemental petition, the court need only hold a single hearing at which both statutory grounds for termination and best interests are considered. The CoA cited  MCR 3.977(G)(1)(b) and (3) is support of its ruling on this issue.

The Michigan Supreme Court’s Order granted oral argument on three issues and framed them as follows: whether the trial court clearly erred in terminating the respondent-father’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (g), (h), and (j),

• where the Department of Human Services failed to maintain contact with the respondent-father throughout the proceedings,
• failed to ensure his appearance at all court hearings (see MCR 2.004), and;
• failed to provide him with an opportunity to comply with a parent-agency agreement tailored to his circumstances, citing In re Rood.

There is no mention of the issue regarding the failure to hold a separate best interests hearing.  The  case originated in Macomb County.  John Bologna is the attorney for Respondent Father.  He handles a number of appeals from Macomb County and does a fair amount of work in Oakland.  I will ask him about the case if I see him in the courthouse and keep you posted.

You can view or download the CoA Opinion here:  In re Mason (CoA)

You can view or download the MSC order here:  In re Mason (MSC Order)

Free Press Editorial on Public Defense in Michigan

On Tuesday, December 1, 2009, the Detroit Free Press ran an editorial entitled Public Defense Must be Upgraded.   The editorial opens, “Scandalously low pay. No standards. That’s the world of court-appointed attorneys in Michigan, and it’s a sham of the constitutional right to adequate legal counsel.”  The article cites an interesting statistic that Michigan ranks “44th among the 50 states in spending — lower than Alabama.”

A House subcommittee and the Michigan Campaign for Justice looked at the issue and recommended adequate state funding and a state commission to oversee an office of public defense that would provide training and enforce uniform and reasonable standards.  The editorial states that a package of bills will be introduced in the State House this month to address indigent defense.  I hope indigent defense for juvenile delinquents, Lawyer-Guardian Ad Litems and respondents in child protection proceedings are included in the legislation.

With the budget woes in Lansing, it is natural to be skeptical that the State would take any action to  increase the amount the it spends on anything, let alone indigent defense.  However, there are a number of signs pointing to the fact that this may not be something Michigan can continue to ignore.

In 2008, the National Legal Aid and Defender Association released the findings of a study of Michigan’s public defense system, giving it failing grades in the areas of system independence, funding and structure; the method of screening for a client’s eligibility for public defense services; confidentiality; attorney availability, competency, consistency, training and quality; equality of resources among prosecutors and public defenders in a case; and a public defender’s advocacy for his or her client.

In March, the U.S. House Subcommittee on Crime, Terrorism and Homeland Security, a subcommittee within the House Committee on the Judiciary, held hearings to examine the extensive problems with how the State of Michigan ensures each resident’s 6th Amendment right to counsel.

In August, the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin released a report (From Time Out to Hard Time) that found Michigan to be among the states with the most problematic theoretical and actual outcomes for young children who commit serious crimes along with Florida,  Pennsylvania, and South Carolina.  The report points out that children as young as 7 could receive a sentence of life without parole in Michigan.

Put simply, Michigan’s public defense system is getting a black eye nationally and this may provide the proper motivation for the legislature to act.   Although, I must admit, it is going to be difficult to overcome public opinion against spending money defending people accused of committing crimes or abusing or neglecting their children.  Naturally, I will be following this issue and posting any updates here.

Comments

When I started this blog in March, my original intent was to allow discussion on each case, topic or article posted.  The problem was spam.  Spammers often flood the comment sections of blogs with advertising and other clutter using little computer programs that do nothing but search the internet to put advertising and other junk in posts on websites.  I thought the best way to avoid spam was to have everyone who wants to leave a comment become a registered user.  Sadly, I did not have the time to set up a registration page and all of the infrastructure for that,  so the comment feature remained on the back burner.  That is, until now.  I have opened up the comment feature so anyone can post a comment.  To verify that you are a real human being, you will be asked to answer an easy math problem (don’t worry, it’s real easy) before you can upload your post.

It is my hope that by opening up the site to comments we can create a dialogue that will  enhance our understanding of the law.  Comments and posts will be included in the search engine, so if you are looking for an answer on a particular question that I have not addressed in a post, you may find it in the comments.  You can also use the comments to raise any questions you may have about a particular post and receive an answer from me or other readers.  Comments can be used to spark debate.  I hope this feature enhances your use of the site.

In re Williams – Right to Counsel

The initial opinion in this case was issued on 9/29/2009.  On the Court’s own motion, the Court vacated its prior opinion and issued an amended opinion and concurrence, while granting a request for publication.  The case involved the termination of a mother and father’s parental rights on a supplemental petition.  Termination with respect to mother was affirmed, but was reversed with respect to father due to the trial court’s failure to provide him with counsel.

At the termination hearing, father orally requested counsel on the record.  He went through an agency “screening” process to determine if he was entitled to appointed counsel. The screening process imputed income earned by the entire household, including his parents, to him.  As a result, they determined he was not indigent and denied him counsel.  The CoA held the trial court cannot “deny a respondent appointed counsel by imputing to the respondent income earned by people who bear no legal responsibility to contribute to respondent’s legal expenses.  Mere cohabitants, even if parents of an adult respondent, possess no obligation to  pay respondent’s attorney fees, and a court may not prohibit a respondent from exercising the right to appointed counsel based on a calculation that imputes income from resources unavailable to the respondent.”

The Court went on to note that DHS argued father’s lack of “independent housing” and his insufficient income supplied grounds for terminating his parental rights.  The Court held it was “fundamentally unfair to deny appointed counsel because a respondent does not qualify as indigent, while at the same time invoking respondent’s indigence as a ground for terminating his parental rights.”  Thus, the trial court could not have it both ways.  It could not find he had sufficient resources for counsel, but was indigent for the purposes of providing for his children.

The failure to notify father of his right to counsel violated MCL 712A.17c(4) and the error was not harmless.  The Court of Appeals remanded the case for appointment of counsel and a new trial.

In a concurring opinion, Judge Gleicher took the opinion one step further and argued that father was entitled to counsel during the adjudication phase also.

As I have noted numerous times in this blog, when courts’ budgets are strained, court appointed counsel is an easy place to make cuts.  Some courts are attempting to “redefine” how counsel is appointed in order to save funds.  As this opinion makes clear, this can end up being more costly as this matter may have to be tried again.  You cannot deny a person their due process rights to save a buck.

To download or view the opinions, click here: In re Williams (Majority); In re Williams (concurring)

In Re Sikorski – Release from Prison

In this case, the CoA found that the trial court clearly erred when it terminated rights under MCL 712A.19b(3)(h) [The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child's proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.] Respondent’s earliest release date from prison was only two months after the termination hearing.  The Court reasoned that there is too much uncertainty in potential release dates for section (3)(h) to be used as a basis to terminate parental rights when a respondent’s earliest release date is close to the time of the termination hearing.

The Court went on to hold that the error was harmless because there were other grounds for termination that respondent did not contest. If  your client’s earliest release date is anytime within two years of the termination hearing, you could make this argument.  Obviously, the closer to two years from the termination hearing your client’s earliest release date is, the less likely this argument will prevail.

You can view or download the case here: In re Sikorski