IN RE RICHARDSON/THOMAS MINORS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of L.D.R. and A.D.T., Minors.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
August 2, 2002
Petitioner-Appellee,
v
No. 236971
Wayne Circuit Court
Family Division
LC No. 00-390821
MARVIN THOMAS,
Respondent-Appellant,
and
MICHELLE ANNETTE
DONALD T. OLIVER,
RICHARDSON
and
Respondents.
Before: Murray, P.J., and Sawyer and Zahra, JJ.
PER CURIAM.
Respondent appeals as of right from the trial court’s order terminating his parental rights
to the minor child under MCL 712A.19b(3)(a)(ii), (g), and (j). We affirm. This case is being
decided without oral argument pursuant to MCR 7.214(E).
Respondent first argues that he was denied due process because he did not receive proper
notice of the termination hearings pursuant to MCL 712A.19b(2)(c). Respondent did not raise
this due process issue below and therefore has not preserved it for appellate review. According
to People v Carines, 460 Mich 750, 773-774; 597 NW2d 130 (1999), an unpreserved,
constitutional error merits reversal only if it was “a plain error that affected substantial rights.”
To show that substantial rights were affected, the respondent must show “prejudice, i.e., that the
error affected the outcome of the lower court proceedings.” Id. at 763.
Based upon a review of the record, it appears that respondent was not properly notified of
the beginning of the termination proceedings. By the time that respondent was personally served
written notice of the permanent custody hearings, at least one substantive hearing wherein
-1-
witnesses testified had occurred. However, while there may have been irregularities in the notice
provided, respondent has not demonstrated that he was prejudiced by these irregularities.
The testimony during respondent’s absence was related solely to respondents Richardson
and Oliver. This testimony had no bearing or relevancy to the grounds that were relied upon to
terminate respondent’s parental rights. Respondent’s parental rights were terminated because of
his inability to care for his daughter due to his incarceration. Respondent had ample opportunity
to explore this issue at the hearing on July 11, 2001. Furthermore, respondent’s counsel had the
opportunity once appointed to review the record of the missed testimony and could have asked to
recall the witnesses in question if there were any concerns. Counsel knew the posture of the case
and proceeded accordingly. Respondent is not allowed to assign as error on appeal something
which his own counsel deemed proper at trial since to do so would permit the party to harbor
error as an appellate parachute. Dresselhouse v Chrysler Corp, 177 Mich App 470, 477; 442
NW 2d 705 (1989).
Next, respondent argues that he was denied due process because his attorney was not
present at several hearings, including the initiation of the termination hearing. Again, respondent
did not raise this issue below, consequently, he must show that he suffered plain error that
affected his substantial rights. Carines, supra at 774.
In a child protective proceeding, MCR 5.915(B)(1) mandates the appointment of counsel
for indigent parents. However, the court rule requires affirmative action on the part of the parent
to trigger the appointment and continuation of appointed counsel. In re Hall, 188 Mich App 217,
218; 469 NW2d 56 (1991). Respondent never appeared to request counsel at the hearings in
which he was unrepresented. But, as discussed above, this was because he had no knowledge of
the permanent custody proceedings until they had already begun. Thus, resolution of the issue of
whether respondent was denied the right to counsel, depends upon whether proper notice of the
proceedings was provided.
As indicated above, respondent was not given proper written notice of the proceedings.
Because respondent was not properly notified of the permanent custody proceedings until they
were underway, he could not waive the right to counsel under MCR 5.915(B)(1). However, the
analysis does not end there.
As with the analysis of Issue I, because respondent’s claim of error is an unpreserved,
constitutional error, he must also show that he was prejudiced by the absence of his counsel at
those prior proceedings. Carines, supra at 773-774. For the reasons set forth above, we
conclude that respondent cannot make such a showing.
Respondent has failed to show that he was prejudiced by plain error. Therefore, reversal
is not required. Carines, supra at 763-764.
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Brian K. Zahra
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
