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)