IN RE ILARIO NUNE DUNCAN-TUGMAN MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ILARIO NUNE DUNCANTUGMAN, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 25, 2010
Petitioner-Appellee,
v
No. 294066
Kent Circuit Court
Family Division
LC No. 07-055129-NA
LARRY DONALDSON, JR.,
Respondent-Appellant.
Before: WHITBECK, P.J., and SAWYER and BORRELLO, JJ.
PER CURIAM.
Respondent Larry Donaldson, Jr., appeals as of right the order of the trial court
terminating his parental rights to his minor child pursuant to MCL 712A.19b(3)(a)(ii), (g), and
(j). We affirm.
Respondent contends for the first time on appeal that the trial court violated his due
process right to counsel by failing to appoint counsel to represent him until the proceedings had
been pending for almost one year. We disagree. We review respondent’s unpreserved claim of
constitutional error for plain error affecting substantial rights. People v Carines, 460 Mich 750,
764-765; 597 NW2d 130 (1999). An error affects substantial rights if it causes prejudice,
meaning that it affects the outcome of the proceedings. In re Utrera, 281 Mich App 1, 9; 761
NW2d 253 (2008).
A respondent in a child protective proceeding has a due process right to counsel. In re
EP, 234 Mich App 582, 597-598; 595 NW2d 167 (1999), overruled on other grounds by In re
Trejo Minors, 462 Mich 341, 353 n 10; 612 NW2d 407 (2000). This right is further provided for
by statute and court rule. See MCL 712A.17c; MCR 3.965(B)(5); MCR 3.915(B)(1). A putative
father, however, is not a “respondent” in a termination proceeding. See In re Gillespie, 197
Mich App 440, 446; 496 NW2d 309 (1992) (interpreting the former court rule). Pursuant to
MCR 3.977, “respondent” includes the natural or adoptive mother of the child and the father of
the child as defined by MCR 3.903(A)(7), which does not include a man who is a putative father
only.
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When the child in this case was removed by the agency, respondent was identified as a
putative father only. As a putative father, respondent was not a “father” as defined by MCR
3.903(A)(7), and therefore was not a “respondent” entitled to the appointment of counsel. After
the case had been pending before the trial court for almost one year, a report was introduced
during a permanency planning hearing in October 2008, demonstrating the results of a paternity
test that established respondent as the father of the child. At the conclusion of that hearing, the
trial court appointed counsel to represent respondent.
Respondent nevertheless argues that the foster care case manager testified several months
earlier in April 2008 that she learned the results of the paternity test and that respondent was in
fact the biological father. Respondent therefore argues that the trial court should have appointed
counsel to represent him at that time, instead of waiting until the report was introduced into
evidence at the later hearing. Respondent, however, did not make an appearance at the April
2008 hearing and was not determined to be the child’s father at that proceeding. MCR
3.903(A)(7). Further, respondent cannot establish and points to no prejudice that arose from not
being represented by counsel before the appointment was made. No action was taken between
April and October 2008 to terminate his parental rights; in fact, respondent’s parental rights were
not terminated until approximately nine months after he had been appointed counsel. Further,
even prior to respondent being proven to be the biological father of the child, respondent was
nonetheless offered an opportunity to work with the agency toward gaining custody of the child,
but declined to participate. After being appointed counsel, respondent continued his same level
of nonparticipation and did not attempt to work toward gaining custody of the child until two
weeks before the termination hearing.
Because respondent has not demonstrated that the trial court’s failure to appoint counsel
between April 17, 2008, and October 21, 2008, in any way affected the outcome of the
proceedings, we hold that there has been no demonstration of plain error affecting substantial
rights. We further note that a respondent does have “some minimum responsibility” in having
counsel appointed. See In re Hall, 188 Mich App 217, 218; 469 NW2d 56 (1991), in which the
trial court terminated the appointment of counsel when the respondent failed to maintain contact
with appointed counsel. While we do not today define the level of that responsibility, we note
that respondent in this case did not demonstrate even a minimum level of responsibility in
pursuing the appointment of counsel or otherwise pursuing reunification with his child.
Affirmed.
/s/ William C. Whitbeck
/s/ David H. Sawyer
/s/ Stephen L. Borrello
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