IN RE KEJANA JIHAD KIRK MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KEJANA JIHAD KIRK, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
September 25, 2001
Petitioner-Appellee,
v
No. 228677
Ingham Circuit Court
Family Division
LC No. 00-324081-NA
KESHA KIRK,
Respondent-Appellant,
and
BRUCE MORRIS,
Respondent.
Before: K. F. Kelly, P.J., and White and Talbot, JJ.
PER CURIAM.
Respondent-appellant Kesha Kirk (herein “respondent”) appeals as of right from the trial
court order terminating her parental rights to the minor child pursuant to MCL 712A.19(b)(c)(i),
(g) and (j). We vacate the court’s order and remand.
On June 5, 2000, the trial court conducted a termination hearing in this matter. At the
start of the hearing, respondent’s counsel moved to withdraw from the case because respondent
was not present in court. Counsel stated that respondent had attended the pretrial conference on
March 31, 2000, and he had had no contact with her since that time. Counsel assured the court
that respondent was made aware of the date of the termination hearing.
The trial court agreed that counsel’s representation of respondent would be difficult
without her cooperation, and granted counsel’s motion to withdraw. The court then conducted
the termination hearing without respondent or her counsel. At the conclusion of the hearing, the
court made findings of fact and terminated respondent’s parental rights to the minor child.
Immediately following the court’s ruling, respondent entered the courtroom and indicated that
she had been waiting in the hallway outside the courtroom. The trial court then conducted an off-1-
the-record meeting with counsel for petitioner in chambers while respondent waited in the
courtroom. Although we cannot know what was discussed in chambers, we do know that the
trial court then informed respondent that the hearing was over and her parental rights were
terminated. The court advised respondent that her proper course of action was to appeal the
decision.
On appeal, respondent argues that the trial court erred in granting her attorney’s motion to
withdraw. We review a trial court’s ruling on a motion to withdraw for an abuse of discretion.
In re Withdrawal of Attorney, 234 Mich App 421, 431; 594 NW2d 514 (1999).
Respondent had a right to representation by counsel at the termination hearing. MCL
712A.17(c); In re Powers, 244 Mich App 111, 121; 624 NW2d 472 (2000). The record is void
of any evidence that respondent waived or relinquished her right to counsel. Although counsel
stated that he had not had contact with respondent since the pretrial conference, counsel made no
representations regarding his efforts, if any, to contact respondent. At the time counsel moved to
withdraw, the trial court could not have known whether counsel’s withdrawal would have a
material adverse effect on respondent’s interests. Under the circumstances, we conclude that the
trial court abused its discretion in allowing respondent’s court-appointed counsel to withdraw at
the commencement of the termination hearing. In re Withdrawal of Attorney, supra at 431.
Moreover, we cannot conclude that the violation of respondent’s right to representation
was harmless error. Despite respondent’s absence at the termination hearing, minimally, counsel
could have been present to make objections, cross-examine the witness, argue on behalf of
respondent, and preserve the record for appeal. Further, if the trial court had not permitted her
attorney to withdraw, he could have moved for a rehearing of the court’s termination decision
pursuant to MCL 712A.21(1) when the parties discovered that she was present.
The order of termination is vacated and this matter is remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Helene N. White
/s/ Michael J. Talbot
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