In re Williams – Right to Counsel

Melinda Deel — Wed, 02 Dec 2009 13:00:36 +0000

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 Cooper – Putative Father

Melinda Deel — Wed, 09 Sep 2009 15:59:33 +0000

There were 10 termination of parental rights opinions from the Court of Appeals on the E-Journal this morning. All of them affirmed the termination. In In re Cooper, Respondent father argued that the trial court erred in failing to take action to ascertain his status as the child’s father, as a result of which he was deprived of his right to court-appointed counsel. The Court of Appeals found the trial court failed to comply with MCR 3.921(C) (presumably the notice requirements) after finding at the preliminary hearing probable cause to believe that respondent was the child’s putative father. However, they found he was not prejudiced by any error that may have occurred. Respondent was not entitled to counsel until he became a respondent by establishing paternity, and he did not take exception to the trial court’s exercise of jurisdiction over the child before paternity was established. After respondent established paternity, counsel was appointed to assist him, the termination hearing was adjourned to permit respondent to confer with counsel, and respondent was represented by counsel at the hearing. Under the circumstances, the Court held, any error was harmless.

The Court engages in a nice little discussion of when a parent is entitled to counsel:

A respondent in a child protective proceeding has a due process right to counsel. In re EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re Trejo, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). That right is also guaranteed by statute and court rule. MCL 712A.17c(5); MCR 3.915(B)(1). In child protective proceedings, a putative father, i.e., the alleged biological father of a child who does not have a legal father, is not a respondent. MCR 3.903(A)(7), (17), and (23); MCR 3.903(C)(10). Therefore, until respondent became a legal father by completing and filing an acknowledgement of parentage, MCR 3.903(A)(7)(e), he was not entitled to the appointment of counsel.

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

Michigan Children's Law Blog » right to counsel

In re Williams – Right to Counsel

In re Cooper – Putative Father