*1 In re In re WILLIAMS 2, 2009, Lansing. at Decided June Docket No. 289260. Submitted 24, 2009, November at 9:10 a.m. petitioned Department the Berrien Circuit The of Human Services Division, tempo- Court, Family granting petitioner the for orders Williams, custody Makyla rary permanent the minor and of Williams, Sr., daughter respondents, Lashawnda of Michael and rights. Masjay Wright, terminating respondents’ parental the and referee, court, by Followingproceedings a the Thomas conducted Nelson, J., terminating respondents’ the entered an order E. custody petitioner. rights granting of the child to the respondents appealed. The Appeals of held: The Court convincing supported evidence the determination 1. Clear and parental rights respondent of the mother on to terminate the addiction, inability longstanding drug persistent her bases of her drug housing complete program, her lack of a treatment employment. prob- that the mother’s evidence showed considering the not rectified a reasonable time lems will be within terminating age. part of the order child’s parental rights must be affirmed. mother’s father, months of the 2. The for the first four who, indigent, proceedings, qualify “respondent” if did not as a counsel, petitions right court-appointed had the because the against allegations wrongdoing not contained no him. It was supplemental petition petitioner that it identi- until the filed an act or omission that converted the father’s status from fied perma- nonoffending parent “respondent.” A of a into that of informing nency planning hearing was then conducted without appointed The father father of his counsel. requested court-appointed counsel at the termination hear- then however, determining hearing ing, at the the referee erred in qualify appointed for counsel. The referee erred the father did not father, imputing his mother and to the father income earned lived, legal responsibility to contribute with whom he who have no may legal expenses. prohibit A court to the exercising appointed counsel on the from imputes basis of a calculation that income from sources unavail- respondent. rejecting respon- able to the The referee erred in request dent father’s counsel at the termination hearing under the circumstances this It case. was not harmless permanency fail error to to inform the father at the *2 planning hearing right appoint about his to counsel or to refuse to hearing. plain at counsel the termination These errors affected the proceedings fundamental fairness of the and the father’s substan- rights. part terminating respondent tial The of the order the parental rights father’s must be reversed and the case must be proceedings. for further remanded part, part, Affirmed in reversed in and remanded. J., concurring, agreed by with the result reached the Gleicher, majority separately express but wrote to her belief that the respondent right appointed to counsel attached at the proceedings petitioner outset of the rather than when the filed the supplemental petition identifying respondent. him as a Funda- process principles required mental due that the referee offer the respondent court-appointed father counsel in accordance with 3.915(B)(1) deprived MCR when the father was first of custody deprivation the of his highly child. of counsel was prejudicial to the protective father in this case. Child proceedings nonoffending parent that divest a of his or her child’s custody implicate process liberty caring the due interest in for the child, regardless petitioner formally of whether the has identified parent respondent. process the as a deprives due when a court nonoffending parent a custody of his or her child’s should be by balancing first, determined private three factors: the interest by action; second, that will be affected the official the risk of an deprivation through procedures erroneous of such interest the probable used and the value procedural of additional or substitute safeguards; third, government’s interest, including the the func- tion involved and the fiscal and administrative burdens the procedural requirement additional or substitute would entail. An application compels of these factors this case the conclusionthat the referee should appointed have offered the adjudication every hearing counsel at the trial and at conducted thereafter. The error was not harmless. Rights Right - - 1. Parent and Child Termination of Parental to Counsel. guarantees right The United States Constitution a to counsel parental rights cases; concepts termination the constitutional of process equal protection grant respondents due and in termination proceedings right counsel; right to the constitutional of due In re right appointed indigent parents counsel process confers on to may hearings the termination of their involve at rights. Right Proceedings Indigents — — — Parent and Child Child Protective 2. —Imputed Appointed Income. Counsel may deny respondent in child appointed counsel to a A court not proceedings by imputing to income protective legal responsibility people to contribute bear no earned who cohabitants, parents respondent’s legal expenses; if mere even obligation pay respondent’s respondent, possess no a an adult fees; attorney may prohibit exercis- from court ing calculation that counsel on basis of a (MCL imputes unavailable to the income from sources 3.915[B][1]). [5]; 712A.17c[4]and MCR Masjay Wright R. Lashawnda Perry Norm Williams, Michael Sr. EJ., SERVITTO JJ.
Before: OWENS, GLEICHER, as a circuit appeal Respondents Fer CURIAM. *3 order their We affirm terminating rights. court mother, regarding Wright, respondent Lashawnda M. Sr., respect Williams, respon- Michael reverse with father, con- dent and remand for further proceedings cerning We have decided this case respondent father. 7.214(E). argument oral MCR pursuant without I. FACTUALANDPROCEDURALHISTORY Williams, of Respondents parents are the 7, born on At the time of who was December 2007.1 birth, in Makyla’s Odyssey mother resided respondent House, a abuse center residential substance treatment 1 Williams, Jr., Respondents parents are born also the of Michael 18, January respondents’ parental 2007. The terminated circuit court 2008, re rights to Michael in and this affirmed. In October Court Williams, Appeals, unpublished opinion per of the issued curiam Court (Docket 288304). 28, 288260, April 2009 Nos. Respondent Odyssey Flint. mother withdrew from February 1, 2008, completing
House on before her returned County treatment. She to Berrien with two- Makyla, month-old enrolled in an intensive outpa- tient program Community treatment at the Healing weeks, Center. For approximately respondent six mother complied requirements imposed with by the program. intensive outpatient (CPS) 2008, In March Children’s Protective Services received information that mother had respondent pre maturely outpatient ceased her abuse substance treat ment and her renewed habitual use of crack cocaine and marijuana. 13, 2008, On March petitioner, Department (DHS), of Human petition Services filed seeking temporary custody of Makyla. petition The contained no allegations substantive about father.2 A circuit court petition referee authorized the and or dered Makyla placed foster parties care. The have not provided this Court with the 13, the March transcript 2008, preliminary hearing, and it is uncertain whether father attended. The circuit court record reflects mother appeared and re quested counsel, and that the court ap pointed counsel for her.
Petitioner an filed amended on petition 24, March greater containing regarding detail mother’s substance abuse history. The amended peti- tion recited father “is the legal father of Makyla,” but contained allegations no that respon- petition’s sole reference to father averred: attempt An made to was conduct a home visit on 3/12/08. spoke Davis, grandfather Petitioner [sic] with Cecil Lashanda’s *4 baby just who stated [sic] that Lashanda and the had left with
Michael The Petitioner Williams. left a card with Mr. Davis and requested he [sic] have Lashanda call. In re WILLIAMS Makyla neglected or lacked or abused dent father had capacity for her. to care May conducted a 2008, court referee a circuit On Respondent adjudication mother did not trial. bench represented counsel. The trial, but was attend the respect respon- preliminarily observed with referee you Williams, here without coun- are father, “Mr. dent repre- you’re going my understanding that sel. It’s affirmatively, replied yourself?”Respondent father sent followingcolloquy ensued: you you have Okay. And understand The Referee: that? to do Yes. Respondent Father: you understand that same And also
The Referee: you have counsel or regulations apply whether rules and comply the same laws you have to with not? So still that, You understand sir? rules.
Respondent Father: Yes. go proceed right. And ahead and All we’ll Referee: proper. notice is because prosecutor father as her called Respondent that he testified father first witness. security mother, disabil- received social lived with his ity spot as “a that he described income for a disease doing my lung,” income and earned additional on agreed Respondent father and ends.” “odds lifestyle “very unstable” mother had a housing In re- and a of income. and lacked source posed by sponse questions referee, spent explained that he time with changed diapers. Respon- every day, her, and her fed given respondent that he had dent father volunteered “end[ing] up money prevent her from mother the streets.”
A supervisor and therapist Community at the Heal- ing Center testified that mother continued cocaine, to abuse and marijuana, alcohol, crack successfully failed to complete the intensive outpatient Forrester, program. Makyla’s treatment Amanda foster worker, care that in recounted March 2008 mother regularly had admitted cocaine and using mari- juana, and stated Forrester that services had been offered to respondent mother. Neither pre- sented any evidence.
The prosecutor requested court that find “that there’s a of preponderance evidence that the mother has neglected the child and the risk in care, child’s at her in position the father’s not a able provide to be the child on his Respondent argued: own.” father honor, my Your I condition and whatever is haven’t —
wrong me, with a lot people there’s lot sicker than me custody have their children I like this. And take care June, Mike, of little I take care of little and I take care of stay her, her up, change diapers, too. I I watch their feed four, them morning.... three or five o’clock in the my physical problem And prevent does not me from not taking taking care of take them. I care of them. —from I buy buy feed them. I them [P]ampers. I they whatever need, everything. milk I support them. The referee determined that came Makyla within the jurisdiction, court’s finding that “transferring this child back to the home of either be parent would inappropriate and would potentially cause more harm than any good that can it.” come of After the referee announced his ruling, objected, “I why don’t see I can’t have temporary custody of them I because don’t smoke I drugs, do not I’m drugs. do at home with them.” proceeded referee to conduct a dispositional hearing. Forrester recommended that remain in In re WILLIAMS sister, and re- with placement prosecutor: posed questions as follows sponded Senior’s sister? Q. Mr. And this is Williams A. Yes. child? pretty good access to his
Q. gives him That day- provides mother Michael Senior’s It does. A. Yes. in the same during time and she lives for the child care Michael, have that —liberal So he does Senior. home as to the child. access Williams, guy? pretty nice he’s
Q. in terms of Mr. And *6 A. Yes. He is. caring for his children
Q. very consistent He’s been being involved? and
A. Yes. lives? his children’s
Q. be involved with He wants to A. Yes. spends much time as actually as
Q. he visits And correct? possible them. Is that with I know. Yes. A. As far as year ago” she that “about then described Forrester physician respondent from received a “form” help needs with that Mr. Williams “basically stating some basic preparation, meal laundry, shopping, form, Forrester had of the At the bottom chores.” medical this patient’s “Does inquired physician, parent/raise able to being him from keep condition physician adult?” The child until he is an 4-month old Forrester advised wrote, “Yes,” and underlined it. medi- additional willingly signed two father respondent had physician efforts the releases, but her despite cal Forrester additional information. her with yet supply to elaborate physician that she wanted asserted father why respondent saw no reason that she admitted could care of his provide family “with assistance Forrester, had According petitioner members[.]” nei- provided any ther offered nor services to father, from a apart parenting class that successfully father of the completed course child protective Michael, Jr. proceeding regarding Forrester only recommended father maintain Makyla. contact Regarding mother, with Forrester recommended substance abuse treatment fol- by counseling, class, lowed individual a parenting weekly time. parenting
The prosecutor sought clarification of Forrester’s by recommendations inquiring, you’re your “So not — goal isn’t to keep the children from Mr. Williams?” responded, Forrester “No. It’s not.” The referee ad- dressed and highlighted father that “the prosecutor and Department of Human Services, everybody you’re thinks that a pretty good dad.” The referee then advised respondent father that “we want get restrictions, a handle on” any health and that he should stop “enabling” by mother giving her money. Respondent agreed cooperate father with petitioner. 9, The circuit May court’s order of afforded respondent frequent” “liberal and parenting time “supervised Department Hu- *7 man designee.” Services its and/or 30, 2008,
On July the referee conducted dispositional hearing. prosecutor review The noted that a termination petition had been “in requested companion the file” Michael, involving Jr.3 lawyer-guardian ad litem re viewed mother had “a signifi- missed provided copy The record to this Court does not of include of the petition regarding Michael, Jr., and we are unable to determine whether petition sought the initial in Michael’s of case termination parental rights. father’s In re lot “needs a of ser- drug screens,” number of cant prosecu- the had failed to initiate. Neither that she vices” any concerns ad litem voiced lawyer-guardian nor tor noted that referee then father. The about sarcosis [sarcoidosis].” father had “pulmonary respondent father questions, to referee’s response In and received treatment that he took medication explained condition, had “the same” since which remained for this The referee then in 1987 or 1989. original diagnosis its her mother, and warned length at with spoke lose her drugs if to use she would she continued opined: children. referee the child to the home at appropriate It to return is point I’m the child would this because not sure what issues face on the substance abuse. based himself, gives got problems medical which
Dad’s some becoming problems as far as the custodial [sic] him some they need a You’re parent. But mean don’t father. doesn’t father, Williams, right? going to be the Mr. to continue Yes, Respondent Father-. sir. any further elaborated hearing participants of the
None lung disease. regarding respondent concerns hearing noted concern- after the But order entered returned harm to child if the child was ing “likely “Father has medical issues which parent(s),” his or her child.” taking him control from prevent 6, 2008, petitioner authorized On October referee cus- seeking permanent file supplemental petition father, the Makyla. regard tody With alleged as follows: supplemental petition child, parent let alone two cannot one Mr. Williams himself, may He children, by issues. small due health susceptible is to the lure of his kind heart but he have a relationship has not demonstrated with LaShawnda and strength to what she wants even that he has the resist *8 when that is not what is best for his children or for gave money ostensibly prevent LaShawnda. He her to her stealing engaging prostitution get money from to or for drugs. her driveway He allowed to live in his car his using opportunity go program instead of that as an to into a hy asking help. greatest worker His mistake was in Wright providing her Ms. means to leave residential program completed treatment before she had it success- fully and received all of the benefit that she needed to prepare step recovery. herself for next in her There is strong no enough reason to believe he would be to resist her in the future. 22, 2008,
On October the circuit court referee con- ducted a permanency planning hearing regarding Makyla. The initiated prosecutor following collo- quy: you
The Did Prosecutor: first want to review with Mr. Williams, though this, I even know he knows attorney proceed? have an before we Williams, The you Mr. I it take have not hired Referee: counsel? Respondent moment, your Father: No. Not at the Honor. Okay. you you And understand that have a Referee: you if hire counsel wish? Respondent Father: Yes. you’re willing proceed And without Referee: today?
counsel Respondent Yes. Father: Okay. The Referee:
Foster care worker Kanita Roseburgh testified that petitioner had pursued reunify reasonable efforts to parents. with her related Roseburgh that re- spondent had mother entered a drug residential treat- ment program, and respondent father “lives with his parents and does have a condition, medical which In re WILLIAMS According for his child.” caring him from prohibits complete had failed to Roseburgh, respondents both *9 substantially comply or otherwise services offered their case service and conditions of the terms with de by telephone, mother testified Respondent plans.4 treatment efforts current substance abuse scribing her substance free. Re remaining and her commitment on his following statement father offered spondent behalf: own my rights my They
Respondent Father: terminated my rights my they’re trying terminate now son and everything this court asked of me to daughter. And I did stuff, buy them kids. I them And I take care of do. right up— they I take their stuff need. whatever top before I do they need I take off whatever my rights they’re terminating because anything. And get And that’s not looking for LaShawnda to better. I’m my my my rights for son or right for them to terminate daughter. that...
The Is Referee: I’m not— Respondent Father: And statement, —your Mr. Williams? The Referee: go going to let this Respondent Father: Yeah. I’m not mean, attorney they prosecuting neither because the —I wrong. They they asking if I have never had no was didn’t — my I place I had no to have home because home. never long relationship. always term took care of other folk kids Williams, understand, that You Mr. this The Referee: today going anything? hearing isn’t to terminate Respondent Right. Yes. Father: going going not to do The to—we’re We’re Referee: today. opinion, evidenceexists that As discussedlater in this no complete comply plan a case service or failed to father failed to with services. offered
Respondent Right. Father. only going The We’re to determine what we’re Referee: going to do between now and the 12th of November. Respondent Yes,your Father. Honor. Okay. you And understand the 12th of Referee: -
November, hearing that’s the Respondent Father. Yeah. —will decide anybody’s whether or not Referee:
rights going are to be terminated.
Respondent Yes,your Father: Honor. The referee announced that although he continued to support his prior authorization of the supplemental permanent custody petition, “at this point I’m not changing the plan [reunification] until I hear the testi- mony and the evidence on the termination.”
The termination hearing occurred on November 2008, and respondent father almost immediately re- quested counsel. The following discussion ensued: Williams, any The Mr. you comment wish to Referee:
make? Respondent I Father: want to know if I can ask the court appointed
for a court lawyer on this. The A appointed lawyer? court Referee: Respondent Father: Yes. The you’re I don’t believe entitled to a court Referee:
appointed lawyer in this case. Well, wait a minute. respondent. You are a Lawyer-Guardian Ad Litem: I don’t believe he’s been screened, your Honor. We .. . we’ve told him in the other case and he’s attorney never had an any hearing. at He’s constantly reminded to be screened if he wants court appointed attorneys. He every would have been told at one hearings. of these In re yeah. I thought We discussed that The I we— Referee: thought back October. is, appointed question is he entitled to a court But the lawyer? know that until
Lawyer-Guardian Ad Litem: We won’t he’s screened. got I for—I did one for
Respondent Father: screened Michael Junior. you get appointed lawyer?
The Did a court Referee: guess pretrial. I for this Respondent Father: hearing? about the termination The What Referee: I meant. Respondent Father: That’s what Pardon? Referee: Respondent Father: Yes. Does 2008— Referee:
Prosecutor: Your Honor— court —0020 indicate that there was a The Referee: appointed lawyer for Mr. Williams? Honor, just looking I’m back at 2007-
Prosecutor: Your [prosecutor] that I have from Ms. *11 anywhere. Well, one of the—
The Referee: legal Lawyer-Guardian Litem: He father. Ad is petition The —statements in the is that Mr. Referee: any Williams doesn’t have income. Lawyer-Guardian Well, Ad Litem: but he does. He’s previous hearings only get disability testified in does he payments, jobs but he does odd on the side. Because that allegations, was one of the giving money was that he was enabling Wright. Ms. But puts whether or not that him income, over I don’t know what those standards are. He’d have to be screened. Honor, going
Prosecutor: Your this case has been on for months, prior almost nine going case on was for over a year. I adequately think that he’s every been advised hearing he needs—what he would need to do. I haven’t present hearings. been my those It’s not file. But I would assume from the [Lawyer- notes and from what Long Guardian ad Litem] Ms. has indicated that he has had ample opportunity to already obtain counsel. And he’s been through hearing a termination so he knew what he was going facing today. into
Lawyer-Guardian Ad Litem: change That doesn’t legal father, fact that he’s a respondent, he’s a and he screened, should at least be which he can do over the phone.
Respondent Attorney: Mother’s And on behalf of our office,your Honor, if he previous case, was screened on necessarily doesn’t mean that that would transfer over to this one. He would need to be rescreened on this one. And Long indicated, as Ms. that could be phone done over the just a few if minutes we wanted to [sic] off the record to facilitate that. Well,again, definitely I think so because he Referee: respondent-father.
is a agree And that, you know, while I day, it’s a little late in the he still has a to do it. go So we will off the record. back,
Prosecutor: I think we should call mom tell her— do, Yeah. I think going what we’re to Ms. Referee: Wright, going we’re phone to disconnect the in a few *12 In re legal services to Mr. to contact minutes for Williams eligible for a court whether or not he’s [sic] screened lawyer. appointed back, you probably in we’ll do is we’ll call
And then what 20 minutes to 25 minutes. about sooner, screening depends long the takes. It Of on how longer though. much shouldn’t take than that Okay. in The We’re back on the record file Referee: took a recess to determine whether or 2008-0027-NA-N.We eligible appointed not Mr. would be for court Williams counsel. Hadanek, [sic]
Ms. what was the results of that? Honor, Attorney: Respondent Mother’s Your Mr. Will- put through by telephone. our He iams was office was living parents he’s been since screened. Because with included And he [sic]. 2003 we all household include was percent. over income at 133 eligible So he would not be for court Referee: lawyer? correct, your
Respondent Attorney: Mother’s That’s Honor. right. All
The Referee: Williams, screening process Mr. determination from the you appointed lawyer. is that would not be entitled to court you lawyer, You would still be entitled if wished to hire a you you ample opportunity could have done that. But had replete do with all kinds of this case to so. record is you you indications to had a to do that. You right. day waived that So now on the of trial we’re going going adjourn you’re to—we’re not it to do so. So going representing yourself. to be right. go
All proceed. So we will ahead and Bush, Malinda respondent mother’s drug rehabilitation counselor, testified that respondent mother had been “in treatment, and out of engaging disengaging, then engag- ing then disengaging,” since 2004. Bush opined that although respondent mother was doing well her cur- *13 rent residential treatment setting, she could not safely parent a child inpatient outside the environment.
Forrester testified that she had Makyla’s worked on 2008, case until July and that she reviewed the services that petitioner had offered to respondents both since Michael, Jr., placed was in foster care in October 2007. Forrester described that respondent mother had made progress no regarding her stability, emotional neglected participate classes, parenting lacked housing and employment, and failed to meaningfully participate in substance abuse treatment. Forrester related that re spondent father had participated in parenting psychological assessments, completed a parenting class in January 2008, and regularly attended his parenting times. explained She that respondent father’s medical condition “[ijnitially wasn’t much of a concern” because she lacked information regarding the condition. For rester continued, “However, when I received some more information from his doctor then it did become a concern.” Forrester conceded that she based her con clusion regarding respondent father’s health on the “form” respondent father’s doctor had completed in 2007, she previously which submitted to the court.5 5 Our careful review of the actually record reveals that Forrester never any received physician “more information” from one-page form, than the adjudication whose contents she at the described trial. In re although Forrester offered that children,” “cares about his he neglected provide medical “stating documentation that he’s able to raise them,” and “he’s also not able to show that he has housing. So he’s not to provide able for them finan- cially.” According Forrester, “[t]hose are still con- cerns today.” Forrester that acknowledged she had no recent information with respect to whether respondent father continued to “enable” mother.
Roseburgh, the foster care specialist who assumed Forrester’s duties in August testified concerning respondent father that she had requested only “adequate documentation from health,” his doctor regarding his which he failed to provide. She conceded father’s parents provided for his household needs. Rose- burgh opined safely father could not care “because we don’t have adequate documenta- tion from [his that says doctor] that it’s him okay for to do that. So big that’s the issue point.” at this Roseburgh echoed Forrester’s concerns that respondent father lacked “independent housing,” agreed that his income would not suffice “to him in help raising a child.” regard With mother, Roseburgh expressed the same con- *14 Forrester, cerns as had opining mother had progress made no in any areas of concern and lacked a relationship with Makyla.
Respondent mother testified that she continued to significant achieve gains her therapeutic setting, and felt strongly that she could remain abstinent from drugs alcohol and and safely parent Makyla after her release from residential treatment. Respondent father testified in fashion, narrative objecting to the loss of his parental rights. He insisted that he routinely washed, fed, and children, dressed his and capable felt of taking care of them. follow- with the began opinion referee his bench summary:
ing me, really present dilemma to to be does a
This case many, many it you. There are reasons honest with rights of to terminate the seems like a no brainer almost me that the other side it seems to parents. And then on doing know, as been, you doing what he needs be has dad I don’t agree I that sometimes far he’s concerned. [as] the difficulties. But quite some of think he understands pulmonary He didn’t ask to have that that’s not his fault. [sic], you pronounce it. however scardosis or mother’s The referee found termination to MCL pursuant warranted parental rights 712A.19b(3)(c)(i)[the adjudi- to the leading conditions likelihood of exist with no reasonable cation continue to given time the child’s a reasonable rectification within (c)(ii) recommendations parent received age], [the opportu- and had a reasonable rectify other conditions conditions], so, rectify failed to the other nity to do but intent, fails to parent provide (g) [irrespective no reasonable likelihood custody care and proper time do so within a reasonable might exists that she (i) had age], parent rights [the the child’s given due to serious and of the child terminated sibling abuse, prior or neglect physical chronic or sexual The referee invoked failed]. rehabilitation efforts have terminating respon- only (g) ground subsection as lastly found rights. The referee dent rights would respondents’ parental that termination of apparently interests because she serve best Makyla’s with a placement paternal have a permanent would aunt, that would afford arrangement an sober, mother, if she remained and respondent ongoing Makyla. access to findings and adopted
The circuit court the referee’s 13, 2008. in an order entered on November conclusions *15 In re 271 respondents Both timely sought appointed appellate counsel. The circuit court appointed the same appellate lawyer for respondents, both who now appeal as of right.
II. ISSUES PRESENTED AND ANALYSIS
A. STANDARD OF REVIEW
We review for clear error a circuit court’s decision to
3.977(J).
terminate parental
rights. MCR
The clear
error standard controls our review of “both the court’s
decision that a ground for termination has
proven
been
by clear and convincing
and,
evidence
where appropri-
ate,
the court’s decision regarding the child’s best
interest.” In
Minors,
re Trejo
341,
462
356-357;
Mich
(2000).
must qualify at least as clear and convincing. Santosky Kramer, v 745, 455 US 768-770; 1388; 102 S Ct 71 L Ed (1982). 2d 599 The clear and convincing evidence stan- dard is “the most demanding standard applied in civil In Martin, cases[.]” re 227; 538 NW2d (1995). 399 Supreme Our Court has described clear and convincing evidence proof as MICH *16 firm belief or trier of fact a in the mind of the
produce[s] sought allegations to be as to the truth of conviction clear, weighty established, and and so direct evidence factfinder] to come to a clear convincing [the as to enable precise conviction, hesitancy, the truth of the without omitted; (quotation marks and citations [Id. in issue. facts original).] alteration MOTHER
B. RESPONDENT that insufficient evi- contends mother Respondent parental rights termination of her supported dence and con- find that clear any statutory ground. We on termination of evidence warrants vincing the basis of MCL rights on mother’s 712A.19b(3)(c)(i) led to (g). and The conditions in- court ward temporary as a Makyla’s adjudication longstanding drug addic- mother’s volved a treatment tion, inability complete drug persistent Al- housing employment. and lack of program, commend- mother embarked on a though respondent addiction several months before able effort to treat her totality of the evidence hearing, the termination accomplished any that she had amply supports existing by in the conditions meaningful change adjudication. time of the
Furthermore, detect no reasonable likelihood we addic- lengthy struggle drug mother’s with “will be housing and her lack of employment tion considering time a reasonable rectified within 712A.19b(3)(c)(i). Although respon- MCL age.” child’s well in her residential appeared doing dent mother to be our hearing, time of the termination program at the require she testimony reveals that would review of assessment, counseling, super- lengthy period with her child could be vision before reunification exists that re- expectation reasonable considered. No In re spondent mother provide could proper custody care or before the child’s second birthday. The circuit court correctly determined that years the two Makyla already had spent care, life, foster her entire constituted too long period to await the mere possi- bility of a radical change in respondent mother’s life. The evidence detailed above also clearly and convinc- ingly supports the circuit court’s reliance on MCL 712A.19b(3)(g) as an alternate ground for terminating her parental rights.
The record does not substantiate the any existence of additional conditions causing the child to come within the court’s jurisdiction, as required to paren- terminate 712A.19b(3)(c)(ii). rights tal pursuant to MCL But because the evidence amply supports termination under *17 two alternate statutory subsections, the court’s invoca- (c)(ii) tion of subsection qualifies as harmless error. In Minors, re Powers 244 App 111, 118; Mich 624 NW2d (2000). 472
C. RESPONDENT FATHER Respondent father’s appointed appellate counsel challenges only the sufficiency of the evidence support- ing termination of parental rights. Appellate coun- sel failed to raise any issue regarding his client’s lack of counsel during the termination hearing, or at any point after petitioner manifested its intent to terminate re- spondent parental rights.
Only rarely will this Court consider and decide an issue not raised by the parties. Here, however, we are confronted with a circuit court order permanently sev- ering respondent father’s right fundamental to the care custody child, of his entered after proceedings conducted without the assistance of counsel. Because we cannot ignore a process that casts serious doubt on
274
Mich
253
286
proceedings
integrity
risk sub-
and would
of the
injustice
unexamined, we
to stand
if allowed
stantial
respondent fa-
consideration
turn to a detailed
right
issues.
LME v
and related
to counsel
ther’s
(2004).
App 273, 287;
(b) attorney if the court-appointed to a attorney. financially employ unable to an is (c) attorney, represented is not an If the attorney court-appointed request and receive a [Emphasis proceeding. added.] at a later *18 respon- specifically Legislature addressed a also separate indigence same of the in a subsection dent’s proceeding appears in under to the court “If it statute: 2(b) (c) respondent chapter that the or of this section attorney financially retain an unable to and is wants an In re attorney, the court shall an to appoint attorney repre- 712A.17c(5) respondent.” sent the MCL (emphasis added). 3.915(B)(1),
In Supreme MCR our Court delineated the procedures employed that must in protec- be child tive to proceedings implement the statutory right to appointed counsel. The court rule provides:
(a) respondent’s At appearance, first court the court respondent the right shall advise of the to retain an attorney represent any hearing to the at con- pursuant ducted to these rules and that (i) right appointed the has to the a court attorney financially the if to is unable retain attorney, and,
(ii) represented if attorney, the is not an respondent may request court-appointed attorney at any hearing. later
(b) appoint attorney The court shall represent an any hearing at pursuant conducted to these if rules
(i) respondent requests appointment attorney, of an (ii) court, appears following it to the an examination of record, through statements, written financial or other- wise, financially that the is unable retain an attorney. This has explicitly recognized Court the United guarantees States Constitution a right counsel parental rights Powers, termination In In cases. re Mich at this explained: Court “The constitu- tional of due concepts process equal protection also grant respondents termination proceedings right to counsel.” This Court also explicitly recognized has that the constitutional of due process confers on indigent parents counsel at *19 App Mich 253 286
276 their the termination of that involve hearings may 600; Cobb, 598, 344 rights. In re (1983). NW2d legislative judicial these now consider when
We respon designed safeguard indigent an mandates to respon to to counsel attached right appointed dent’s 712A.17c(4) MCR father. MCL dent Both 3.915(B)(1)(b) specifically right appointed extend the pro in child only “respondent^]” to indigent counsel no petition initial contained proceedings. tective father, against respondent allegations wrongdoing ability parent about his to expressed no concerns the hearing, Consequently, preliminary at the Makyla. respondent dispositional hearing, and the adjudication, “respondent.”6 Although did not as a qualify father involving some care workers voiced concerns foster condition, until point at no respondent father’s medical directly did it petition filed the petitioner supplemental act that identify respondent an or omission converted into nonoffending parent status that of a from applicable a Under the statute and respondent. that of rule, thus respondent enjoyed court father no during the first four months of appointed counsel However, autho when circuit court proceedings. 2008, on it supplemental petition rized the October of his required advise father was counsel. appointed un hearing, father
At the termination requested appointment of counsel. equivocally “respondent” parent, guard- rules the term as “the The court define custodian, ian, alleged legal nonparent or who is to have committed adult 3.903(0(10). against against a “offense an offense child.” MCR The term guardian, by parent, defined act or omission a child” is as “an adult, grounds bringing nonparent legal asserted as for or custodian jurisdiction pursuant Code.” of the court to the Juvenile child within 3.903(C)(7). MCR In re screening the referee utilized a record reflects did not to determine process screening procedure counsel. The qualify appointed father all the income of his imputed household, parents. that earned We including may deny the idea that a court reject in by imputing counsel to the *20 legal responsibility earned who bear no by people come expenses. to the Mere respondent’s legal contribute to cohabitants, respondent, if of an adult parents even attorney to the possess obligation pay respondent’s no fees, may prohibit respondent and a court from counsel on the basis of exercising right appointed the unavail a calculation that income from sources imputes able to the Because father’s respondent. respondent legal obligation pay attorney had no for an parents son, their had no relevance simply for their adult assets indigence.7 determination of father’s Furthermore, at the petitioner contended termination hearing “independent father’s lack of housing” and his supplied grounds insufficient income find terminating rights. fundamentally for We it deny unfair to counsel because a appointed qualify indigent, does not as while at the same time ground as a for invoking respondent’s indigence terminating rights. And we note that parental difficulty appointing circuit court had no apparently for appeal. counsel father’s Under cir here, presented by reject cumstances the referee erred ing respondent request counsel at hearing improperly the termination because the court imputed to income earned others. by 6.005(B) guide MCR sets forth the factors that must a court’s indigency. determination of a criminal defendant’s factors do not Those mention income earned others.
An erroneous
deprivation
appointed counsel for
subject
child
can be
to a harm
protective proceedings
Hall,
analysis.
less error
In re
188 Mich App
(1991).
222-223;
III. SUMMARY The circuit correctly court terminated respondent rights mother’s for the reasons described in opinion. However, this at the permanency planning hearing, plainly the referee erred by failing to advise counsel, father of his to appointed *21 compounded by this refusing error to appoint counsel at hearing. termination These plain errors affected respondent father’s substantial rights. The continuous ongoing and nature of the referee’s errors concerning respondent right father’s to appointed counsel affected fairness, “the integrity, public or of reputation” these proceedings. Id. at 774. Accordingly, we reverse the part of the order terminating respondent father’s rights and remand for further proceedings consistent with this opinion. hearings petitioner The referee conducted these two after filed the
permanent custody petition identifying respondent respon- a father as dent, triggering appointed thus to counsel under MCR 3.915(B)(1). In re J. Concurring by Opinion Gleicher, in part,
Affirmed in reversed and remanded for part, opinion. further consistent with this We do proceedings retain jurisdiction. OWENS, EJ., Gleicher, JJ., and SERVITTO concurred. GLEICHER, {concurring). I the result J. concur with majority. reached I write to separately express my father’s appointed view counsel attached at the outset of the proceedings, rather petitioner supplemental than when filed the him permanent custody petition identifying as a re- deprived I believe that when the circuit court spondent. custody child, father of the of his fundamen- tal due that the circuit court process principles required in offer counsel accor- 3.915(B)(1). I separately dance with MCR also write why elaborate on the reasons I of deprivation view highly prejudicial counsel as error this case. trial, adjudication petitioner At recommended against respondent having custody Makyla father’s unquestioningly accepted the referee this recommenda- Despite respondent persistent tion. father’s requests fitness, and his custody undisputed inexplica- the referee bly Maklya’s placement petitioner. ordered with Fetition- custody er’s father’s expressed opposition his child and the referee’s determination at the adjudica- “transferring tion that this child back to the home of either would be parent inappropriate poten- would it,” tially any good cause more harm that that can come of functionally altered father’s status from of a nonoffending parent respondent. that of When petitioner and the referee articulated that would he custody, qualified be at risk as respondent notwithstanding any de facto the absence of allegations against formal him.
280
286 Mich
253
Concurring Opinion by Gleicher,
J.
of a
“essential”
importance
parent’s
“pre-
right
cious”
to raise his or her child is well-established
Hunter,
in our
v
jurisprudence. Hunter
(2009).
257;
Fundamental due process principles required that
petitioner
the referee consider
a
respondent, and inform him at
adjudication
the
trial of
counsel. This is so because
petitioner sought
deprive
father of his
fundamental right
custody Makyla
unspeci-
for an
period,
fied
and the
agreed
referee
to this proposal.
“There is no question
parents
a
process
have
due
liberty interest
in caring for their
In
children ....”
re
(2001).
AMB,
144, 209;
248 Mich App
In process due deprives when court nonoffending parent of his or her child’s custody should be by determined balancing three factors described v Eldridge, 319, 335; 893; Mathews US 96 S Ct (1976): L Ed 2d 18 First, private interest that will be affected action; second,
official
deprivation
the risk of an erroneous
through
used,
procedures
such interest
and the
probable value,
any,
if
proce-
of additional or substitute
safeguards;
finally,
interest,
dural
the Government’s
including the function involved and the fiscal and admin-
Concurring
In re Opinion by
*23
Gleicher,
J.
proce-
the additional or substitute
istrative burdens that
requirement would entail.
dural
“
flexible
that due
‘is
recognize
process
These factors
the particu-
as
procedural protections
and calls for such
”
v
334,
Morrissey
at
quoting
lar situation demands.’
Id.
Brewer,
471, 481;
2593;
Ct
Here,
of the
factors
the
application
Eldridge
compels
have offered respon-
conclusion that the referee should
trial
adjudication
dent father
counsel at the
appointed
First,
hearing
at
thereafter.
every
conducted
care,
in
custody,
interest of a
private
parent
control of his or her children is one of the oldest
the United
liberty
recognized by
fundamental
interests
Granville,
US
Supreme
States
Court. Troxel v
530
(2000).
65;
2054; 147 L Ed 2d
“It
cardinal
120 S Ct
is
and nurture of the child
custody,
with us that
care
parents,
primary
reside first in the
whose
function
preparation
obligations
freedom include
the state
Massachusetts,
can neither
nor hinder.” Prince v
supply
(1944).
438;
158, 166;
321 US
64 S Ct
The second factor considers the risks of Eldridge Here, error inherent in a risk proceeding. of erro- neously of his custodial depriving respondent right qualified as substantial. Without assistance from counsel, respondent ability fully father lacked the comprehend although formally that he had not been respondent, named as a his fundamental to cus- tody hung during every hearing in the balance each and Thus, conducted this case. a substantial risk existed an dep- father would suffer erroneous Concurring Opinion Gleicher, J. rivation of his custody Makyla, despite that no his proved Appointed evidence unfitness. counsel would complete have identified the absence of allegations unfitness, father’s and would have re- minded the court that because spent days her home, strongly evidence sup- ported she would remain safe in his custody. Counsel additionally argued could have that if peti tioner intended to use father’s sarcoidosis as a ground for terminating rights, it first had to fully investigate actual extent of his disability, and then offer addressing any services pertinent physical limitations.1 Counsel would have emphasized that the *24 foster care workers who testified in support of depriving father of custody premised their opinions solely on a form one-page containing diagnos minimal information, tic and that the workers had not actually spoken to the physician or pos determined that he sessed an understanding of the presented issues in a child welfare case. Counsel would have pursued addi information, tional medical pointed out that respondent father resided in a stable home with parents who assisted him necessary, when vigor would have ously challenged petitioner’s claim that the sarcoidosis disqualified respondent father from raising his child. Lacking assistance, counsel’s respondent father had no opportunity to advocate that under the Americans with (ADA), Disabilities Act 42 USC 12101 et seq., his sar coidosis served to petitioner’s enhance obligation to initiate meaningful reunification efforts. 1 Undoubtedly, additionally highlighted counsel would have proof obligates petitioner
burden of to establish father’s unfitness, physical otherwise, by convincing or clear and evidence. MCR 712A.19b(3). 3.977(A)(3); testimony MCL The caseworker’s in this case suggests petitioner improperly shifted to father the substantiating physical burden of fitness. In re Opinion Concurring J. Gleicher, the state’s inter- factor involves Eldridge
The third impose would of counsel Admittedly, appointment ests. became burden. But this burden state a financial on the its intent formally announced petitioner once inevitable Af- rights. to terminate de- during petitioner the months that fording counsel Maky- of liberately sought deprive expense have of custody likely spared would la’s and would have contrib- proceedings, these repeating balancing outcome. After uted to a more reliable factors, required I conclude that due Eldridge process father the that the circuit court afford it ordered that counsel when first appointed custody. reside outside his Co, In v Social Services Durham Dep’t Lassiter 31; 2153; L Ed Carolina, 452 US 101 S Ct North de- (1981), Supreme the United States Court 2d 640 following situation which hypothetical scribed the would be in a child required of counsel appointment protective proceeding: case,
If, parent’s their given in a interests were at weakest, strongest, the State’s interests were at their peak, their it not be said the risks of error were at could presump- Eldridge that the factors did not overcome the counsel, against and that due tion appointment process require did not therefore of coun- sel. *25 view,
In this is such a case. my Irrespective rule did not mandate state statute court applicable for father before respondent of counsel appointment I respondent, identified him as a petitioner formally due procedural process believe that basic notions of denied requests when the court triggered custody for of his child. 286 MICH 253 Concurring Opinion Gleicher, J.
Furthermore, I believe that additional and compel- ling support reasons a determination that depriva- tion of father’s counsel at permanency planning hearings termination cannot as qualify harmless error. The initial petition filed this case did not mention pulmo- father’s nary disease or any physical ability concern about his parent Makyla. dispositional At the hearing, foster care worker Amanda Forrester admitted that she needed additional information physi- from father’s cian concerning the physician’s conclusion that respon- dent prevent father’s condition would him from raising asked, a child. When don’t see any why “[Y]ou reason he can’t care . provide with. . the assistance of his family on,” members as it’s going Forrester replied, “No.” At the dispositional review hearing, the referee took note that received ongoing sarcoidosis, treatment for and identified reunification as the permanency plan. Not until petitioner filed the supplemental petition did it first assert that respondent father’s medical prohibited condition him caring from for his child. And at the termination hearing, evidence in support marshaled of terminating respon- dent father’s rights concentrated exclusively almost on his alleged physical limitations.
Had the referee appointed counsel
father, counsel certainly would have raised
legal
several
arguments
on
father’s behalf that
likely
would have significantly affected
First,
the proceedings.
counsel would have recognized from the outset of the
proceedings that respondent
pulmonary
sarcoi-
potentially
dosis
him
qualified
for services under the
ADA.
ADA
requires
petitioner
“to make rea-
sonable accommodations for those individuals with dis-
abilities so that all persons may receive the benefits of
public programs and
In
services.”
re
Mich
Terry, 240
*26
In re Opinion by
Concurring
Gleicher,
J.
(2000).
14, 25;
the FIA [Family
“[I]f
for and supporting that no that he ever had failed to supported evidence custody care or for the child. Given the provide proper supporting strength weak evidence termination contrary arguments attorney that an could have *27 presented, proceedings likely the outcome of the would presence have differed in the of counsel. 0020 and notes Penninger hearings, I don’t know about the at each of the orders, prelim back in 2007 but the note I have from the income, attorney today. I an have was over waived otherwise, attorney nothing in a in here other than waives spots. few different hearing I I think... the termination have a note at attorney. prior case. Mr. waived And that was a Williams file, your Honor, In I have the same notes here of this like, attorney. I have prelim it looks that he waived attorney being nothing in here about a court