IN RE IRWIN/SCHOOLCRAFT MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KATTIE IRWIN, DAWSON
IRWIN, and SHAYNE LYNN RENEE
SCHOOLCRAFT, Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
July 13, 2001
Petitioner-Appellee,
v
No. 229012
Cheboygan Circuit Court
Family Division
LC No. 98-000531-NA
RONALD IRWIN,
Respondent-Appellant,
and
SHARICA SCHOOLCRAFT
Respondent.
Before: Hood, P.J., and Whitbeck and Meter, JJ.
WHITBECK, J. (concurring).
I concur in the result the majority opinion reaches. Even though Ronald Irwin was not a
respondent in the proceedings at the time the family court conducted the adjudication in this case,
the family court acknowledged its obligation to ensure that the Family Independence Agency
(FIA) presented legally admissible evidence to support termination.1 The FIA did provide this
legally admissible evidence, which established clear and convincing proof of grounds to
terminate Irwin’s parental rights under MCL 712A.19b(3).2 Because termination was not clearly
contrary to the children’s best interests, the family court properly terminated his parental rights.3
Like the majority, I see no merit to the other issues Irwin raises. I write separately to explain,
1
MCR 5.974(E)(1).
2
See id.
3
MCR 5.974(E)(2).
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briefly, one aspect of this case that I find somewhat troubling, though not sufficiently so to
warrant reversing the family court’s order.
I. The One Parent Problem
From my perspective, the FIA4 should list both parents as respondents in a protective
proceeding if all the following conditions exist: (1) the FIA knows both parents’ identities, (2)
the FIA knows both parents’ whereabouts, (3) there are grounds to list both parents as a
respondent in a protective proceeding, and (4) the FIA intends to initiate protective proceedings
against at least one parent. If the FIA does not make both parents respondents under these
circumstances, which I refer to as the one parent problem, a number of difficult issues may affect
the course of the proceedings and the nonparty parent’s substantive legal rights.
First, when the one parent problem exists, the FIA usurps the right of the parent who is
not listed as a respondent to demand a jury for the adjudication.5 I think it possible that if the
FIA worker and legal staff handling a case are particularly pressed for time because of a heavy
caseload, they might see a jury trial for the adjudication as a waste of time. In such an instance,
the FIA worker and legal staff could make a calculated guess concerning which parent was less
likely to demand a jury trial, proceed only against that parent, and then later add allegations to the
petition concerning the other parent who had, for instance, voiced an intent to demand a jury,
simply in order to preclude one parent from demanding a jury trial.6 While this tactic may not
violate any specific statute or court rule governing child protective proceedings, it nevertheless
lacks the fundamental fairness that is the hallmark of the American justice system. Though I
have every reason to believe that most, if not all, FIA workers who initiate child protective
proceedings are efficient, compassionate, and fair advocates for children, I would hate to see
child protective proceedings become yet another avenue for legal gamesmanship.
Second, when the one parent problem exists, it affects the nonparty parent’s ability to
challenge the family court’s jurisdiction over the children. Michigan law is well-settled in
holding that the time to challenge a family court’s order assuming jurisdiction over minor
children in a protective proceeding is immediately after the family court takes jurisdiction, not
after it terminates parental rights.7 However, I think it possible, if not probable, that if the
nonparty parent challenged the family court’s jurisdiction properly, this Court would dismiss the
appeal for lack of standing. After all, from the state of the pleadings in such a case, the appealing
parent’s parental rights are not at risk and, therefore, it is questionable whether that nonparty
parent is aggrieved within the meaning of the court rules.8
4
I focus on the FIA because it is a child protective agency and is involved in the vast majority of
cases in which a family court considers a petition to terminate parental rights.
5
See MCR 5.911.
6
See MCR 5.974(A)(3).
7
See In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993).
8
See Dept’ of Consumer & Industry Services v Shah, 236 Mich App 381, 385; 600 NW2d 406
(1999) (discussing MCR 7.203(A) and related case law).
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Yet, the nonparty parent cannot wait until the FIA makes him or her a respondent by
proceeding under MCR 5.974(E) in order to gain standing. The factfinding step in MCR
5.974(E)(1) may be considered roughly equivalent to an adjudication, strictly in the sense that it
requires legally admissible evidence. Yet the court rules under this changed circumstance
provision in MCR 5.974(E)(1) do not create a natural opportunity to file a direct appeal by
providing for two phases of proceedings in the way an adjudication is separate from a
disposition; once the factfinding step is complete and there is evidence supporting termination,
the family court immediately moves to the best interests consideration.9 Of course, having
already terminated the parental rights of the parent originally excluded from the proceedings, an
appeal to this Court challenging the family court’s subject-matter jurisdiction will likely fail
because it is a collateral attack. This leaves no practical opportunity for the parent originally
excluded from the petition to challenge the family court’s subject-matter jurisdiction.
II. Irwin’s Circumstances
The record in this case indicates that, from the very early stages of the proceedings, the
FIA was aware of several important facts or issues. The FIA knew that Irwin was the presumed
father10 of three of the children at issue in this case. The FIA was aware that he was imprisoned
and where he was imprisoned. I infer from the FIA’s expertise in child protective proceedings
and familiarity with the statutory grounds for termination, the FIA knew soon after it located
Irwin that there were significant obstacles to his ability to provide proper care and custody for his
children because he was incarcerated and would remain incarcerated for some time. Because of
Irwin’s background and criminal history, as well as his extended absence from the children’s
lives, I find it highly probable that at some time in the early stages of this case the FIA
determined that it would petition to terminate his parental rights. Irwin was even present at
hearings and represented by counsel before he was made a party. Nevertheless, the FIA did not
make Irwin a respondent in the proceedings before the adjudication. While I acknowledge that
the FIA had no duty stemming from statute or court rule to do so, I question why the FIA would
wait to make him a respondent. I do not, however, find error requiring reversal in this delay
because Irwin does not challenge it.
III. Conclusion
Some might contend that it is not necessary to emphasize the rights of both parents when
the parent who is made a respondent from the start is able to demand the procedures, whether a
jury trial for the adjudication or an interlocutory appeal of the family court’s order taking
9
It is not clear to me whether, to avoid the collateral attack rule, this Court would conclude that
the parent had an obligation to ask the family court to stay the proceedings following the
factfinding stage in MCR 5.974(E)(1) to file a direct appeal. See Hatcher, supra at 444 (“Our
ruling today severs a party’s ability to challenge a probate court decision years later in a collateral
attack where a direct appeal was available.”) (emphasis added).
10
See Serafin v Serafin, 401 Mich 629, 636; 258 NW2d 461 (1977) (children born during
marriage are “guarded by the still viable and strong, though rebuttable, presumption of
legitimacy”).
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jurisdiction. However, all too frequently parents are adversaries, not allies. They may be
divorced, never married, or simply not concerned about each other. Further, they often have
different attorneys with different legal strategies calculated to protect their individual interests
regardless of the other parent’s interests. In some instances the parent originally made a
respondent in the proceeding dies or abandons his or her parental rights. Thus, it is impractical
to believe that a nonparty father can rely on the respondent mother to demand the procedure that
would benefit the father, or vice versa.
Others might argue that this concern for parental rights in a child protective proceeding is
unwarranted. I wholly agree the primary focus of a child protective proceeding is the health,
safety, and well-being of children. Nevertheless, when a court terminates parental rights, it not
only has a significant effect on the children’s lives, it is also a drastic step that forever affects the
parents’ liberty interest in raising their children, an interest that the Constitution protects in no
uncertain terms.11 While the juvenile code12 and the court rules13 may technically allow
termination of parental rights without certain procedures, the right to due process may
nevertheless impose additional safeguards to ensure the fundamental fairness of the proceedings.
It is important to remember that even children benefit from proceedings that are fair to
parents. Fairness inspires confidence in difficult decisions, like the decision to terminate parental
rights. After all, while the cases appealed in which termination of parental rights is legally
questionable are few and far between, courts do no good by depriving parents of the opportunity
to demonstrate their fitness. Fairness also promotes finality. If a family court terminates parental
rights following fair proceedings, it is far less likely that a child’s life will once again be thrown
into chaos by reversal on appeal for a due process violation or other error.
Though I am satisfied with the fairness of the proceedings in this case, I remain
convinced that courts must not be so distracted by well-intentioned and perfectly justified efforts
to protect children that they ignore how they treat parents.
/s/ William C. Whitbeck
11
See, generally, Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972).
12
MCL 712A.1 et seq.
13
MCR 5.901 et seq.
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