IN RE MCBRIDE MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of SKYLER LEROY MCBRIDE,
ALEXANDER GARAND MCBRIDE and
SAWYER DALE MCBRIDE, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
July 15, 2008
Petitioner-Appellee,
v
No. 282062
Bay Circuit Court
Family Division
LC No. 06-009381-NA
RONALD D. MCBRIDE, JR.,
Respondent-Appellant,
and
SUSAN MCBRIDE,
Respondent.
In the Matter of SKYLER LEROY MCBRIDE,
ALEXANDER GARAND MCBRIDE and
SAWYER DALE MCBRIDE, Minors.
DEPARTMENT OF HUMAN SERVICES,
Petitioner-Appellee,
v
No. 282243
Bay Circuit Court
Family Division
LC No. 06-009381-NA
SUSAN MCBRIDE,
Respondent-Appellant,
and
RONALD D. MCBRIDE, JR.,
Respondent.
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Before: Gleicher, P.J., and Fitzgerald and Hoekstra, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I concur with the majority’s determination that the trial court properly terminated
respondent-mother’s parental rights. I also agree that the trial court erred by finding that
respondent-father waived his right to counsel. However, I respectfully disagree that the
deprivation of respondent-father’s right to counsel constitutes harmless error.
I. Background Facts and Proceedings
On September 14, 2006, the Department of Human Services (DHS) filed a petition
seeking circuit court jurisdiction of the three involved minor children. The petition alleged that
respondent-father was incarcerated after his conviction of first-degree criminal sexual conduct,
with an earliest release date of June 30, 2015.
A referee conducted a preliminary hearing on the day the petition was filed. Although
respondent-mother was incarcerated in the Bay County Jail at the time of the preliminary
hearing, she appeared at the hearing with appointed counsel. The prosecutor advised the referee
that petitioner had not provided respondent-father with notice of the child protective
proceedings. Neither the referee nor the prosecutor articulated a specific plan to include
respondent-father in future hearings, to determine his interest in the proceedings, or to appoint
counsel for him. The referee signed an order authorizing the petition and placing the children in
foster care, and scheduled a September 29, 2006 pretrial hearing. The prosecutor mailed a copy
of the referee’s September 14, 2006 order and notice of the September 29, 2006 hearing to
respondent-father’s address at the Carson City Correctional Facility.
On September 18, 2006, petitioner sent respondent-father a copy of the petition by
registered mail. The post office delivered it to the Carson City Correctional Facility mailroom,
where someone at the prison acknowledged its receipt. Petitioner filed a proof of service with
the trial court, but did not file a pleading or motion stating that the Michigan Court Rules
required a telephonic hearing that included respondent-father.
On September 29, 2006, the trial court conducted an adjudication hearing. Respondentfather did not attend by telephone, and was not represented by counsel. At the conclusion of the
hearing, Kelly McBride, respondent-father’s sister, asked the court whether respondent-father
could continue visiting with his children at the prison. The record reveals the following
exchange:
The Court: Well, have they been regularly going to the prison to visit
him?
Kelly McBride: Well, when they get a ride up there, yes, they do. The[y]
go and see ’im.
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The Court: I’m not requiring that and I’m not permitting that at this point.
All right.
Once we make some progress, we’ll see what the—what the situation
should be, but as—as of today, I’m certainly not gonna require foster parents
to transport kids to a prison to visit their dad, so—
Kelly McBride: Even their grandparents can’t—
The Court: No.
Kelly McBride: Okay.
The Court: And we’ll determine—You know, we can talk about that more
if that’s an issue and the children are highly bonded to their father and they’ve
been up there frequently. You need to let D.H.S. know that because if there’s
some emotional harm that comes to them from not seeing him, that’s an issue
I’d consider.
But if it’s something where—
The Prosecutor: We can address that on November 6th—
***
The Court: —we’ll address it at the hearing. Which is just a month away
anyway, so, okay.
All right. Thank you, everyone. We’ll sign an adjudication order. We’ll
see you back here November 6th at 2:30.
Respondent-father did not telephonically attend the dispositional review hearing
conducted on November 6, 2006, and once again did not have counsel. The trial court observed
that a proof of service reflected service of notice of the hearing on respondent-father in prison,
“but at this point because of the fact that he’s going to be in for many more years, we don’t need
to bring him in—um—for the hearings.” Later in the hearing, the trial court noted that visitation
with respondent-father had been “suspended … because he is not available due to his
imprisonment.”
Respondent-father did not telephonically attend the dispositional review hearings
conducted on February 7, 2007, March 26, 2007, May 7, 2007, or the July 30, 2007 permanency
planning hearing. Respondent-father also did not have counsel for any of those proceedings. On
August 27, 2007, the prosecutor filed a petition seeking termination of both respondents’
parental rights, and arranged for personal service of a copy of the petition and notice of the
hearing on respondent-father. On September 13, 2007, the prosecutor filed a “motion for order
to allow incarcerated party to participate in a telephonic proceeding.” The trial court granted the
motion and sent a copy of its order to the warden of the Carson City Correctional Facility.
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Respondent-father appeared telephonically at the October 10, 2007 termination hearing,
and immediately requested appointed counsel. The following exchange occurred:
The Court: Well, it’s a little late to appoint counsel at this date. Um, as
far as I’m concerned, you know, we’ve got the proofs ready to go today. And
you—if—you’ve been notified prior that if you wanted an attorney to represent
you, you should have notified the court before then.
Um, I will permit you to be present by telephone, if you wish to be
present. And I’ll allow you to testify, if you wish to testify. But I don’t think it’s
appropriate when this case is ten—well, it’s over a year old, to appoint counsel on
the termination date when we haven’t had any requests from you or contact from
you um requesting that—that right previously. In fact, the only reason we’ve got
you here by telephone today is because the prosecutor’s secretary thought that you
should be present and set it up.
So, um, your position is that you are opposed to the termination of your
parental rights?
Respondent-Father: Yes, your Honor.
The trial court advised respondent-father that he could listen to the proceedings and question the
witnesses, although the court added that it “may have to cut you off at some point” for the
testimony of another witness appearing telephonically.
At the conclusion of the hearing, the trial court stated that it would take its decision
“under advisement” and render a bench or written opinion within 28 days. Respondent-father
asked the court if he could obtain a transcript of the hearing, and the court replied,
[Y]ou would have to pay for the transcripts, unless I do—well, he would
have to pay for the transcripts, wouldn’t he, at this point, because you don’t have
court appointed counsel.
If . . . the court does a termination, you’re … entitled to receive court
appointed attorney for an appeal. And at which case, your attorney would receive
a transcript at that time.
In its November 7, 2007 written opinion, the trial court invoked MCL 712A.19b(3)(g)
and (h) as grounds for terminating respondent-father’s parental rights. Subsection (h) allows a
court to terminate parental rights if
[t]he parent is imprisoned for such a period that the child will be deprived of a
normal home for a period exceeding 2 years, and the parent has not provided for
the child’s proper care and custody, and there is no reasonable expectation that the
parent will be able to provide proper care and custody within a reasonable time
considering the child’s age.
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II. Respondent-Father’s Right to Appointed Counsel
The underpinnings of a respondent’s right to appointed counsel in parental rights
termination proceedings are statutory and constitutional. Our Legislature mandated the
appointment of counsel for indigent parents in MCL 712A.17c(5):
If it appears to the court in a proceeding under section 2(b) or (c) of this
chapter that the respondent wants an attorney and is financially unable to retain an
attorney, the court shall appoint an attorney to represent the respondent.
(Emphasis supplied).
In MCR 3.915(B)(1)(b), our Supreme Court reiterated the statutory right to appointed counsel.
The court rule requires a trial court to appoint counsel in child protective proceedings if “the
respondent requests appointment of an attorney,” and the court determines that the respondent is
“financially unable to retain an attorney.” Notably, neither the Legislature nor the Supreme
Court created any exceptions applicable to incarcerated prisoners, despite the existence of a
statutory ground favoring termination of parental rights when a respondent is serving a prison
sentence of more than two years. MCL 712A.19b(3)(h). Therefore, despite respondent-father’s
status as a prisoner, he had a right to representation during the child protective proceedings, as
well as a right to appointed counsel if he lacked the resources to retain a lawyer.
Furthermore, the Michigan Court Rules provide a specific mechanism for implementing a
prisoner’s right to counsel in child protective proceedings. MCR 2.004 applies to “actions
involving . . . the termination of parental rights,” during which a party remains incarcerated
under the jurisdiction of the Department of Corrections. The rule provides, in relevant part,
(B)
The party seeking an order regarding a minor child shall
***
(2)
serve the incarcerated person with the petition or motion seeking
an order regarding the minor child, and file proof with the court that the papers
were served; and
(3)
file with the court the petition or motion seeking an order
regarding the minor child, stating that a party is incarcerated and providing the
party’s prison number and location; the caption of the petition or motion shall
state that a telephonic hearing is required by this rule.
(C)
When all the requirements of subrule (B) have been accomplished
to the court’s satisfaction, the court shall issue an order requesting the department,
or the facility where the party is located if it is not a department facility, to allow
that party to participate with the court or its designee by way of a noncollect and
unmonitored telephone call in a hearing or conference, including a friend of the
court adjudicative hearing or meeting. The order shall include the date and time
for the hearing, and the prisoner’s name and prison identification number, and
shall be served by the court upon the parties and the warden or supervisor of the
facility where the incarcerated party resides.
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This court rule establishes a system of dual responsibility for protecting a prisoner’s due process
right to counsel in child protective proceedings. The prosecutor must serve the prisoner with the
petition, and must then file with the court a proof of service specifically stating in the case
caption “that a telephonic hearing is required” by MCR 2.004. After the prosecutor
accomplishes these tasks, the burden shifts to the trial court to issue an order permitting the
prisoner to participate by telephone “in a hearing or conference, including a friend of the court
adjudicative hearing or meeting.”
The court rules also include an explicit explanation of the purpose of the prisoner’s
participation by telephone:
(E)
determine
The purpose of the telephone call described in this rule is to
(1)
whether the incarcerated party has received adequate notice of the
proceedings and has had an opportunity to respond and to participate,
(2)
whether counsel is necessary in matters allowing for the
appointment of counsel to assure that the incarcerated party’s access to the court
is protected,
(3)
whether the incarcerated party is capable of self-representation, if
that is the party’s choice,
(4)
how the incarcerated party can communicate with the court or the
friend of the court during the pendency of the action, and whether the party needs
special assistance for such communication, including participation in additional
telephone calls, and
(5)
the scheduling and nature of future proceedings, to the extent
practicable, and the manner in which the incarcerated party may participate.
[MCR 2.004.]
Finally, MCR 2.004 establishes that violations of its procedures render subsequent
proceedings invalid:
(F)
A court may not grant the relief requested by the moving party
concerning the minor child if the incarcerated party has not been offered the
opportunity to participate in the proceedings, as described in this rule. This
provision shall not apply if the incarcerated party actually does participate in a
telephone call, or if the court determines that immediate action is necessary on a
temporary basis to protect the minor child. [Emphasis supplied.]
The court rules and MCL 712A.17c(5) must be interpreted in pari materia because these
provisions share a common purpose and intent: to ensure that incarcerated, indigent parents are
provided counsel and an opportunity to meaningfully participate in child protective proceedings
affecting their parental rights. See People v Tolewitzke, 332 Mich 455, 457-458; 52 NW2d 184
(1952) (observing that relevant statutory and court rule provisions governing criminal procedure
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should be considered together). Additionally, these provisions plainly reflect harmonious
conclusions by our Legislature and Supreme Court that the presence of counsel is necessary to
ensure an accurate and just result.
In Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71 L Ed 2d 599 (1982), the
United States Supreme Court observed that “[t]he fundamental liberty interest of natural parents
in the care, custody, and management of their child does not evaporate simply because they have
not been model parents or have lost temporary custody of their child to the State.” This Court
has explicitly recognized that the United States Constitution provides a right to counsel in
parental rights termination cases. In In re Powers, 244 Mich App 111, 121; 624 NW2d 472
(2000), this Court observed, “The constitutional concepts of due process and equal protection
also grant respondents in termination proceedings the right to counsel.” This Court has also
recognized in another case arising from a child protective proceeding that “[t]he right to due
process protects individuals who are allegedly incompetent and criminals ultimately convicted of
the most heinous crimes.” In re AMB, 248 Mich App 144, 211; 640 NW2d 262 (2001). In In re
AMB, the child’s mother, KB, was possibly mentally retarded or had some form of
developmental delay, and the child’s putative father, JB, “was also KB’s father.” Id. at 150.
This Court noted that “it is possible to infer that JB raped his mentally disabled daughter, KB,
leading to [the baby’s] incestuous conception.” Id. Nevertheless, this Court held that both KB
and JB “were entitled to procedural safeguards in this child protective proceeding,” which
included constitutionally protected rights to counsel and meaningful participation. Id.
II. Analysis
Application of MCL 712A.17c(5), MCR 3.915(B)(1)(b) and MCR 2.004 to the facts of
this case compels the conclusion that the trial court wrongfully denied respondent-father his
rights to counsel, appointed counsel, and to participate meaningfully in the child protective
proceedings. In my view, the “string of errors” that deprived respondent-father of these
substantial rights “cast doubt on the fundamental fairness of the proceedings.” In re AMB, supra
at 235. For the same reasons that harmless error principles do not apply in criminal cases
involving structural error, I respectfully disagree that harmless error analysis should be utilized
here.
A. Fundamental Rights Denied
In September 2006, petitioner properly served respondent-father with the petition and
filed a proof of service with the trial court. The trial court then ignored MCR 2.004(C), which
required it to “issue an order requesting the department . . . to allow that party to participate with
the court or its designee by way of a noncollect and unmonitored telephone call in a hearing or
conference, including a friend of the court adjudicative hearing or meeting.” The trial court’s
failure to comply with MCR 2.004 deprived respondent-father of his right to any counsel,
retained or appointed. One of the stated purposes of the court rule is “to assure that the
incarcerated party’s access to the court is protected.” By deliberately failing to involve
respondent-father at the outset of the proceedings, the trial court violated his right to have an
attorney intercede on his behalf, or to communicate his ideas and opinions regarding his
children’s best interests.
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The prosecutor shares some responsibility for the trial court’s failure to follow MCR
2.004. The court rule obligates the prosecutor or petitioner to provide in the caption of the
petition a statement that “a telephonic hearing is required.” MCR 2.004(B)(3). According to my
review of the record, no such statement ever appeared in petitioner’s pleadings. The court rule
explicitly sets forth that “the purpose of the telephone call” is to determine “whether counsel is
necessary” and to “assure that the incarcerated party’s access to the court is protected.” MCR
2.004(E)(2). The inclusion of this provision within the court rule clearly and unambiguously
signifies that trial courts conducting child protective proceedings must verbally afford an
incarcerated prisoner the right to (1) counsel, (2) appointed counsel, and (3) telephonic
attendance of the child protective proceeding, regardless whether the prisoner elects to be
represented by counsel.
By failing to follow MCR 2.004, the trial court automatically violated MCL 712A.17c(5),
the statute mandating the appointment of counsel when a respondent desires an attorney and
lacks the resources to retain one, and MCR 3.915(B)(1)(b), which also creates an undeniable
right to counsel when requested by indigent respondents in termination cases. By ignoring all of
the pertinent mandates, the trial court deprived respondent-father of his right to participate in the
proceedings involving his children until it was far too late for his participation to have any
meaning.
B. Harmless Error
Although I acknowledge that MCL 712A.19b(3)(h) creates a virtually irrebuttable
presumption in favor of termination of respondent-father’s parental rights, in my view the
“commanding” liberty interests at stake here,1 in conjunction with the statutory and court rule
mandates for appointed counsel, are entirely stripped of meaning if this Court employs a
harmless error analysis. I believe that the complete denial of counsel in a child protective
proceeding should presumptively result in prejudice, regardless of a respondent’s incarceration.
In the criminal law context, “[t]here are … circumstances that are so likely to prejudice
the accused that the cost of litigating their effect in a particular case is unjustified.” United
States v Cronic, 466 US 648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984). The single “[m]ost
obvious” such circumstance, is, “of course, … the complete denial of counsel.” Id. at 659. In
my view, “structural defects in the constitution of the trial mechanism,” whether they occur in a
criminal or a quasi-criminal setting such as this, “defy analysis by ‘harmless error’ standards.”
Arizona v Fulminante, 499 US 279, 309; 111 S Ct 1246; 113 L Ed 2d 302 (1991). As the United
States Supreme Court pointed out in Fulminante, errors occurring during the presentation of a
case to a jury may be quantitatively assessed in the context of other evidence, but certain
constitutional deprivations, including the right to counsel, “affect[] the framework within which
the trial proceeds.” Id. at 307, 309-310. In the absence of the “basic protections” afforded by
constitutional provisions such as the right to counsel, “a criminal trial cannot reliably serve its
1
In Lassiter v Dep’t of Social Services of Durham, North Carolina, 452 US 18, 27; 101 S Ct
2153; 68 L Ed 2d 640 (1981), the United States Supreme Court recognized that “[a] parent’s
interest in the accuracy and injustice of the decision to terminate his or her parental status is … a
commanding one.”
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function as a vehicle for determination of guilt or innocence, and no criminal punishment may be
regarded as fundamentally fair.” Id. at 310 (internal quotation omitted); see also Penson v Ohio,
488 US 75, 88; 109 S Ct 346; 102 L Ed 2d 300 (1988), explaining that “actual or constructive
denial of the assistance of counsel altogether is legally presumed to result in prejudice,” and that
“a pervasive denial of counsel casts such doubt on the fairness of the trial process, that it can
never be considered harmless error.”
Although the instant case does not involve criminal punishment, it unquestionably
implicates fundamental rights. MLB v SLJ, 519 US 102, 119; 117 S Ct 555; 136 L Ed 2d 473
(1996). In MLB, the United States Supreme Court held that Mississippi could not
constitutionally require indigent parents appealing the termination of their parental rights to pay
record preparation fees. Id. at 127-128. In reaching this decision, the Supreme Court majority
substantially relied on Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 2d 891 (1956), which
struck down a rule that conditioned appeals of criminal convictions on an indigent defendant’s
procurement of trial transcripts that he could not afford. MLB, supra at 110. Although the MLB
dissenters argued that Griffin should not be extended to civil cases involving the termination of
parental rights, the MLB majority rejected that argument for reasons that resound with equal
energy here:
[W]e have repeatedly noticed what sets parental status termination decrees
apart from mine run civil actions, even from other domestic relations matters such
as divorce, paternity, and child custody. To recapitulate, termination decrees
work a unique kind of deprivation. In contrast to matters modifiable at the
parties’ will or based on changed circumstances, termination adjudications
involve the awesome authority of the State to destroy permanently all legal
recognition of the parental relationship. Our Lassiter and Santosky decisions,
recognizing that parental termination decrees are among the most severe forms of
state action have not served as precedent in other areas. We are therefore satisfied
that the label “civil” should not entice us to leave undisturbed the Mississippi
courts’ disposition of this case. [Id. at 127-128 (internal quotation omitted.]
Further, the United States Supreme Court has never utilized harmless error analysis in the
context of a deprivation of the right to counsel derived from the Fourteenth Amendment. In
Douglas v California, 372 US 353, 355; 83 S Ct 814; 9 L Ed 811 (1963), the Supreme Court
grounded an indigent appellant’s rights to appointed counsel in the Fourteenth Amendment’s
Equal Protection Clause. In Anders v California, 386 US 738; 87 S Ct 1396; 18 L Ed 2d 493
(1967), the Supreme Court held that a court could not deny appellate representation to a criminal
defendant based on the appointed counsel’s representation that an appeal lacked merit. Twentyfive years after deciding Douglas, the Supreme Court in Penson determined that application of
harmless error review “would leave indigent criminal appellants without any of the protections
afforded by Anders.” Penson, supra at 86. The Penson Court rejected the notion that an
appellate court’s independent review of the record could substitute for the assistance of counsel
because that result “would render meaningless the protections afforded by Douglas and Anders.”
Id.
In my view, the majority’s application of harmless error review in this case renders
meaningless Michigan’s statutory and court rule imperatives that the trial court appoint counsel
for parents embroiled in termination proceedings. Although respondent-father may be a
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despicable man inevitably destined to lose his parental rights, I believe that new proceedings
must be initiated because the trial court denied him even the barest semblance of due process,
and in doing so created a result that qualifies as inherently contaminated and fundamentally
unfair.2
The appointment of counsel in termination proceedings is a procedural norm in this state.
Counsel is required in every case in which the state seeks to terminate a parent’s rights, despite
that in a substantial number of termination proceedings reaching the appellate courts, the facts
overwhelmingly support the petitioner. As appellate judges know, there are few “close calls”
among the termination cases appealed. Although the results are often predictable, Michigan law
requires the appointment of counsel in all parental rights termination cases, even those involving
incarcerated prisoners, for multiple important reasons.
First, it is beyond debate that even incarcerated parents enjoy a liberty interest in the care
and custody of their children. “The fundamental liberty interest of parents with regard to their
children permeates Michigan laws.” Ryan v Ryan, 260 Mich App 315, 333; 677 NW2d 899
(2004). Our law recognizes that counsel is a necessity, not a luxury, when the state attempts to
permanently deprive a parent of any aspect of this critically important liberty interest. Second,
by protecting the right to counsel in termination cases with the double safeguards of both a
statute and court rule, our law also ensures that every parent, even the most unsavory, receives a
fair trial with inherent integrity.
In my view, an indigent Michigan parent’s right to appointed counsel when facing
termination of his or her parental rights is best protected by uniform and predictable enforcement
of that right, which may be achieved only if trial courts adhere to statutory and court rule
mandates. I would hold that as in criminal cases, the complete denial of counsel during a critical
stage of the proceedings—the adjudication hearing and termination trial—requires reversal. This
is, after all, the remedy prescribed in MCR 2.004(F):
A court may not grant the relief requested by the moving party concerning
the minor child if the incarcerated party has not been offered the opportunity to
participate in the proceedings, as described in this rule.
This case is readily distinguishable from those involving an isolated failure of appointed
counsel to attend a dispositional hearing or another similar, but limited, event in the course of the
adjudicative process. Rather, the remedy set forth in MCR 2.004(F) should be reserved for cases
such as this, in which the trial court failed to recognize respondent-father’s right at the outset of
2
The trial court assumed from the outset that respondent-father’s presence was unnecessary
“because of the fact that he’s going to be in [prison] for many more years.” This assumption
ignored the potentially positive role that respondent-father or his counsel could nevertheless play
in planning for his children or encouraging respondent-mother’s compliance with the case
service plan. Further, at the adjudication hearing the trial court acknowledged that it would
“consider” whether the children would suffer “some emotional harm . . . from not seeing”
respondent-father, yet never did so due to its failure to include respondent-father as a participant
in the proceedings.
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the proceedings, failed to ever ascertain respondent-father’s interest in and need for appointed
counsel, and refused to appoint counsel during the termination hearing itself.3
I recognize that the remedy or result I propose probably has a foregone conclusion, and
will also occasion some delay in placing the involved children for adoption. However, I believe
this result compulsory. The trial court denied respondent-father the most rudimentary form of
due process. It did so in a case that forever severed respondent-father’s substantial and
compelling liberty interest in future association with his children. In the criminal law arena, trial
court errors of this magnitude yield automatic reversal, despite the risk that an unquestionably
guilty defendant may go free. Here, no realistic risk exists that respondent-father will ever
reunite with his children. Nevertheless, because the trial court’s decision to terminate
respondent-father’s parental rights lacks any inherent integrity, in my view it should not stand
affirmed.
/s/ Judge Gleicher
3
I view the trial court’s errors as egregious. At the termination hearing, the trial court advised
respondent-father that “the only reason we’ve got you here by telephone today is because the
prosecutor’s secretary thought that you should be present and set it up.” The majority’s decision
affirms that the trial court’s profound and readily professed ignorance of the rules remains
uncorrected.
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