IN RE ALLISON M BITTENBENDER MINOR
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of AMB, Minor.
FAMILY INDEPENDENCE AGENCY,
FOR PUBLICATION
November 6, 2001
9:00 a.m.
Petitioner-Appellee,
v
No. 218869
Wayne Circuit Court
Family Division
LC No. 99-375617
Updated Copy
January 18, 2002
AMB,
Respondent-Appellant.
Before: Whitbeck, P.J., and McDonald and Collins, JJ.
WHITBECK, P.J.
Apparently relying on an "order" entered by a family court referee, medical personnel at
Children's Hospital of Michigan withdrew life-sustaining medical treatment that AMB, an infant,
was receiving. She died soon thereafter. William Ladd, the attorney appointed to represent her
in the protective proceeding that originally brought her situation before the family court, appeals
on her behalf. We reverse.
I. Introduction
This case is, at its core, a human tragedy. AMB, whom we call baby Allison, is the
central figure. She was born severely ill, with a poor prognosis for long-term survival, and
required extensive medical care. This care included immediate ventilator support and
intravenous drug therapy in the neonatal intensive care unit at Children's Hospital of Michigan, in
Detroit. Baby Allison died at Children's Hospital just ten days later.
Baby Allison's short life, while heartbreaking in itself, does not hint at the truly appalling
circumstances relating to her conception and death. At age seventeen, baby Allison's mother,
KB, became pregnant. Baby Allison's putative father, JB, was also KB's father. When this
situation came to light, local authorities pressed criminal charges against JB and instituted a
protective proceeding against JB and his wife to terminate their parental rights to KB and KB's
younger brother. To complicate this situation further, the record includes explicit, though
unproven, allegations that KB is mentally retarded or has some form of developmental delay.
-1-
The resolutions of the criminal case against JB and the separate child protective proceeding
against JB and his wife are not evident from the available record. However, it is possible to infer
that JB raped his mentally disabled daughter, KB, leading to baby Allison's incestuous
conception.
If the facts surrounding baby Allison's conception are tragic, the circumstances leading to
her death are doubly so. Through unredeemably flawed family court proceedings, the Family
Independence Agency (FIA) acquired what appeared to be an order that authorized Children's
Hospital staff "to take the child off life support equipment and medication provided that 'Comfort
Care' is provided." Despite an explicit warning that the order did not take effect for seven days,
the very next day Children's Hospital staff contacted a chaplain who baptized baby Allison while
her mother and her three aunts were present. According to the chaplain's notes, at approximately
7:30 p.m. "[a]fter the baptism the aunts decided to have the child removed from life support.
Both I [the chaplain] and Michelle the charge nurse took pictures. I again prayed for the baby
and the family. The infant was pronounced dead at 9:25 p.m." Thus, Children's Hospital staff
removed baby Allison from life support without any legal authority, even under the terms of an
order that we ultimately conclude had no legal basis whatsoever. Nonetheless, baby Allison's life
ended, the final act of this tragedy of almost mythical proportions.
The series of individual legal errors and missteps that led to baby Allison's death are our
only focus in this appeal. The hasty family court proceedings were so unseemly precisely
because those involved in this decision knew that a life hung in the balance. The unforeseen
consequence of this rush to make a decision is that the record consists mostly of allegations,
unsworn statements, and hearsay. More often than not, this has forced us to assume that the
record is both adequate and accurate simply to reach the legal issues. We emphasize, however,
that there is no way to determine the truth about this case with any assurance. Further, these
proceedings occurred less than one month before significant changes to the Juvenile Code went
into effect on March 1, 1999.1 Perhaps, had baby Allison been born just a few weeks later, these
proceedings would have been conducted differently.
II. Alleged Facts And Procedural History
A. Baby Allison's Birth
KB gave birth to baby Allison five weeks prematurely, on February 9, 1999, at Oakwood
Hospital. Physicians then discovered that baby Allison's heart was missing a septum, two of her
heart valves were deformed, her aorta was very small, and the size of her heart had forced her left
lung to collapse partially. Baby Allison had hydrocephaly and other brain abnormalities
suggesting corpus callosum agenesis, as well as malformed hip joints and a possible problem
with her intestines. Physicians used the drug prostaglandin to open baby Allison's ductus
arteriosis to help circulate oxygenated blood through her body and placed her on a ventilator.
1
See 1998 PA 480.
-2-
Within hours of her birth, Oakwood Hospital staff transferred baby Allison to the neonatal
intensive care unit at the Children's Hospital of Michigan in Detroit.
B. The First Hearing
On February 11, 1999, FIA caseworker Judith Matlock filed an original petition alleging
that baby Allison came within the family court's jurisdiction pursuant to MCL 712A.2(b)(1) or
(2). The factual allegations in the petition focused on three circumstances: the sexual abuse in
the home JB and his wife shared and the pending petition to terminate their parental rights, KB's
alleged mental limitations and her alleged inability to make decisions for critically ill baby
Allison, and KB's informal living arrangements with her uncle and aunt. The petition asked the
family court to take temporary custody of baby Allison, noting that KB had not made any plans
to care for her baby because KB neither knew how to care for an infant nor had any money.
Richard Smart, a referee in the family court, held a preliminary hearing regarding the
petition that same day. Neither KB nor JB attended this first hearing, and neither was
represented by counsel. No one, including Matlock, testified under oath. However, Matlock
informed referee Smart that she told KB, but not JB, about the hearing. Referee Smart went off
the record briefly before finding "that reasonable efforts have been made to notify the respondent,
all parties." The attorney for the FIA asked referee Smart to authorize the petition and a
placement order and to "authorize all necessary medical treatment for this child, who is
hydrocephalic and has heart defects." Without hearing any additional argument, referee Smart
found probable cause to authorize the petition.
After a second discussion off the record, baby Allison's attorney, Ladd, objected to an
order authorizing anything other than routine medical care, stating, "[T]he statute [does not
allow] anything more than routine medical care and anything that's not along those lines . . . . I
believe the mother is also subject to a petition in this court. [B]ut she is eighteen. If she's
capable of . . . consenting, she can consent . . . ." Referee Smart then suggested that KB was
incapable of consenting to medical treatment for baby Allison, to which Ladd replied, "Well,
then I think that the agency, if there's any . . . nonroutine medical care, they're going to have to
ask for consent of the Court." Ladd gave several examples of what he considered nonroutine
care, including brain surgery or a heart transplant. The assistant attorney general representing the
FIA interjected that he believed that it was within the family court's authority to authorize all
necessary care without specification. Referee Smart stated that his decision would be to "enter
an order allowing for the child to have all necessary medical treatment." Ladd responded, "The
[FIA] worker tells me that there's a serious question about the nature or extent of efforts . . . the
hospital will use to maintain this child alive. And I don't think that you should enter a blanket
order [for medical care] under those circumstances." When referee Smart said that he was not
sure what Ladd was saying, Ladd replied:
Well, if you enter a blanket order, you're essentially giving the FIA and/or
the hospital the discretion to determine what's necessary medical care. And while
they may do things that are unusual and . . . that would normally require some
consent, that order could also authorize them to interpret that as meaning that they
could not give that care. And I think that's not proper.
-3-
* * *
I think that a fully informed decision about medical care, specific medical
care for this child is necessary.
Referee Smart signed and dated a form order authorizing the petition, indicating on the face of
the order that he was a hearing referee. The order stated that "[n]otice of hearing was given as
required by law," denied JB visitation rights, and directed the FIA to place baby Allison in foster
care or with a suitable relative. The order also noted, "The Court orders the child to receive all
necessary medical treatment. Any and all necessary medical treatment is to be given to this child
to sustain her life."
C. The Second Hearing
Matlock filed an amended petition on the following Monday, February 15, 1999. The
amended petition was largely identical to the original petition, but also alleged:
7. On or about 2/11/99 the FIA petitioner conferred with Dr. Virginia
Delaney-Black and social worker Marie Wilmet-Dully about the condition of this
newborn. Dr. Delaney-Black advised that the baby is intubated, on a ventilator
because her heart is so enlarged it has collapsed her right [sic] lung, that the heart
has measurable and serious defects, including an anomaly of the arch of the aorta,
a lack of a partition between the right and left chambers ascites [accumulation of
fluid in the peritoneal cavity, causing abdominal sweeling [sic] due to advanced
heart failure. The infant is also hydrocephalic. She is being kept alive on life
support systems and is experiencing [unreadable] physical distress with no hope
of surviving independent of the life support.
8. On or about 2/11/99 Dr. Delaney-Black advised that it was her opinion
that it is not in this infant's best interest to [be] maintained on life support.
9. The mother is not capable of comprehending the implications of the
medical facts related to the baby and, therefore, cannot make an informed
decision.
10. Because [baby Allison] is a pending ward of the court and because she is
not under the jurisdiction or pending jurisdiction of another court, FIA petitioner
requests that the court render a decision about what is in the best interest of this
infant.
Referee Peter Schummer conducted a hearing regarding the amended petition on
Wednesday, February 17, 1999. Neither KB nor JB appeared at this second hearing, and neither
was represented by counsel. Ladd did not appear at the second hearing because he had not been
notified that it was scheduled. In his stead, "emergency house counsel" Paula Mahinske appeared
to represent baby Allison. Mahinske did not indicate on the record what, if any, steps she had
taken to prepare to represent baby Allison. Referee Schummer did not ask whether KB or JB
-4-
received notice of the second hearing. Neither of the two attorneys present indicated whether KB
or JB were aware that the second hearing was scheduled. Referee Schummer did not inquire
whether baby Allison or KB had a guardian or a guardian ad litem.
At the second hearing, baby Allison's neonatologist, Dr. Delaney-Black, testified under
oath by telephone concerning the circumstances surrounding baby Allison's birth. Dr. DelaneyBlack explained that physicians were administering prostaglandin to baby Allison to
keep the ductus arteriosis open, which gives oxygenated blood to the baby. In the
event of withdrawing this, it is likely that the baby would not oxygenate well and
might not be able to sustain life without this medication. In addition, the baby's
left lung is also been found to be relatively collapsed because of the exceedingly
large cardiac silhouette, which is preventing the lung from expanding, and that's
another reason for the baby needing to be on the ventilator.
Dr. Delaney-Black said that baby Allison's right lung was "relatively normal," but "for long-term
survival, we do not feel that the [heart] lesions that this baby has are compatible with long-term
survival. It is possible that taken off the ventilator and taken off the prostaglandins that the baby
could live for hours, to days, to months." Dr. Delaney-Black also noted that blood reflux on the
right side of baby Allison's heart would ultimately lead to heart failure. When asked whether
baby Allison's chances for survival were better if she remained on the ventilator, Dr. DelaneyBlack said:
No. No. The . . . heart problem is really incompatible with life in a longterm survival situation. Now, as I said, I can't tell you how long she could
survive, but long-term survival is . . . not likely at all . . . . [E]ven if she had no
other problems, there is no easy solution to any of her heart problems.
* * *
My recommendation is that we stop the prostaglandins and we remove her
from the ventilator and provide comfort care. There are other abnormalities as
well, which I have not described, but it's really the heart, which is the life
threatening abnormality at this point. There is also the potential for [a] life
threatening abnormality of the bowel, because the bowel may not be normally
developed. . . .
According to Dr. Delaney-Black, medical staff had not been able to determine the extent of baby
Allison's intestinal problem because she was on a ventilator, but knew that her "very severe"
brain "abnormalities" were not life threatening. Dr. Delaney-Black stated that if baby Allison
lived long enough and developed the capacity to walk, she would require extensive orthopedic
surgery to correct her hip problems.
Dr. Delaney-Black recommended that baby Allison be given "fluids, heat, warmth,
monitoring of her heart rate and vital signs," possibly a feeding tube, and anything else that might
be necessary to keep her comfortable. If baby Allison lived for weeks to months after being
-5-
removed from the ventilator, Dr. Delaney-Black believed that the doctors would have to assess
whether she would need gastrointestinal surgery. Though Dr. Delaney-Black had not spoken
with KB, she believed that another physician had spoken with her and determined that she had an
"extremely limited understanding of what was going on, although she did understand that the
baby had significant heart problems."
During the brief cross-examination by Mahinske, Dr. Delaney-Black again emphasized
that she did not know how long baby Allison could live, irrespective of whether she remained on
a ventilator. Dr. Delaney-Black added that baby Allison could only receive prostaglandin
intravenously. According to Dr. Delaney-Black, even if the physicians could maintain an
intravenous line, it would expose baby Allison to potentially fatal blood infections2 and
pneumonia and, all the while, her heart would continue to fail. Dr. Delaney-Black believed that
baby Allison, who was conscious and not sedated, would suffer less if the life support measures
ended and
[b]ecause we have no medical treatment to offer this . . . child in the long run and
I think what [sic: that] care is futile [and] to ask an infant to suffer on a ventilator
with a tube in their throat, unable to be fed with I.V.s and not being to easily be
held or provided with the kinds of life that one would want, that it is not a humane
decision.
In all, it was Dr. Delaney-Black's opinion that sustaining baby Allison with medical technology
would intensify her suffering while failing to offer any solution for her dire health problems.
When Matlock testified, this time under oath but by telephone, she explained that she had
not had direct contact with KB, despite her representation at the first hearing that she "had the
opportunity to inform the mother" of the proceedings. Rather, according to Matlock, she had
been speaking with KB's paternal aunt. Matlock explained that she had filed the amended
petition, which she called a "medical authorization petition," because she had learned that KB
was a "trainable mentally impaired student" and unable to make complex decisions. Matlock
said that KB's teacher, who neither testified nor furnished any documentary evidence concerning
KB, had estimated KB's IQ at forty-five to fifty points. From Matlock's perspective, "[i]t would
be virtually impossible for her [KB] to make an informed judgement [sic] about her daughter
because she's not able to comprehend the medical information given to her by the physicians who
are treating her daughter." Further,
even though [KB] appeared, to all parties involved, to understand that she was to
have a baby and did in fact have a baby, she had no ability to prepare for the baby,
to anticipate the needs of a baby in terms of equipment, of clothing, of having a
home, that kind of thing. [KB] will probably remain in the education system until
2
There is a dispute in the record concerning whether baby Allison had DiGeorge's Syndrome,
which would make her particularly suceptible to infection.
-6-
she's twenty-six years old to maximize her opportunities for training. She will
be—but she will probably always need a competent care giver.
Matlock wanted the family court to enter an order permitting Children's Hospital to do what was
in baby Allison's "best interests." Mahinske did not question Matlock at all.
Following a discussion off the record on an unknown topic, the assistant attorney general
representing the FIA summarized the testimony at the hearing. He then stated that "we are asking
the Court to authorize the medical authorization petition, which would allow the hospital,
Children's Hospital, to make the appropriate decision based on the best interest for [baby Allison]
at this point in time." Mahinske responded:
We'd concur in that recommendation. Clearly it's been shown through Ms.
Matlock's testimony that this mother lacks any intellectual capacity to make this
decision. And so, therefore, the Court must make the decision for her. . . .
[B]ased on the medical testimony, I believe it would be in the best interest to let
the doctors decide the course of treatment. Unfortunately, this little baby's heart is
just not going to sustain her life and it didn't seem clear from the—in fact, it
seemed contrary from the testimony that to keep her on life support would not
necessarily make her death less painful or any easier. In fact, it would draw out
that process and make it more painful because complications would arise, such as
septicemia. The growth of the heart would not be normal. And there is no
treatment for this heart defect. The only treatment is a heart transplant, but [baby
Allison] is not a candidate. So I would ask the Court to enter the order allowing
the hospital to make the necessary decisions.
Referee Schummer then commented:
I will authorize Children's Hospital to remove the child from life support
as well as from medication, provided that the child is provided with comfort care
as outlined by the doctor. It is clear that the child does not have an opportunity to
live and prolonging the child's life would only prolong the child's suffering and
the mother is certainly not capable of making any informed decisions as to the
procedure and the father is unavailable due to his incarceration. Uh, the fact that
he is the father of the mother, as well as the father of the child would lead the
Court to believe that he is not qualified to make that kind of decision anyway. So
I will authorize the medical . . . procedures as requested and the Court does not
retain jurisdiction. That's my decision. Anybody dissatisfied with that has a right
to appeal it to a judge of this court within seven days, Court of Appeals within
twenty-one days after the order is final.
Referee Schummer's report summarized the evidence and concluded that "[t]he court will
authorized [sic] the hospital to take the child off life support equipment and medication provided
that 'Comfort Care' is provided." The front page of the report had a stamp of a family court
judge's signature and a stamped date indicating that the recommendations and findings had been
"[e]xamined and approved" on February 18, 1999.
-7-
A "dispositional order" on a preprinted form was entered in the record the same day. The
"order" declared, "NOTE: THIS ORDER IS EFFECTIVE 7 DAYS AFTER THE HEARING
DATE UNLESS A PETITION FOR REVIEW IS FILED IN ACCORDANCE WITH MCR
5.991." The family court judge's stamped signature appeared on the form order along with a
February 18, 1999, date stamp. Substantively, the "order" only stated, "Children's Hospital is
authorized to remove the child from life support equipment and medication provided that
'Comfort Care' is provided."
D. Baby Allison's Death And The Immediate Aftermath
For reasons that are unclear from the record, Children's Hospital staff did not wait the
seven days for the "order" to become effective or for a party to request judicial review. Rather,
on February 19, 1999, Children's Hospital staff removed the life support and baby Allison died.
On February 25, 1999, six days after baby Allison's death, Ladd filed a petition for
judicial review of referee Schummer's findings and recommendation. In pertinent part, the
petition stated that review was critical because Mahinske had represented baby Allison at the
second hearing and "[c]ounsel was not given an opportunity to observe the child, consult with
caretakers and expert witnesses. The appointed attorney was not apprised of the early hearing
date, nor was any attorney from LADA [the Legal Aid and Defender Association] asked to be
present. Neither parent was notified or served." The family court held a review hearing on
March 18, 1999. The family court, ruling in part from the bench, approved referee Schummer's
findings and recommendation. Nevertheless, at the conclusion of the review hearing, the family
court indicated that court personnel would review the procedures in place in order to determine
whether there was a better way to handle similar cases in the future. The family court later issued
an order that recapitulated its findings and dismissed the review petition as moot.
E. Appeal
Attorney Kathleen Gonzales filed a claim of appeal on behalf of baby Allison in April
1999, after which Ladd also filed an appearance. The FIA contested their authority to claim an
appeal. The Chief Judge of this Court, in an unpublished order dated October 1, 1999, dismissed
the case on an administrative motion docket on the grounds that Gonzales lacked authority to file
the appeal on behalf of baby Allison. In response to a motion for rehearing, on November 24,
1999, a panel of three judges3 dismissed the appeal for the same reason. On January 18, 2000,
the same panel vacated the November 24, 1999, order, but again dismissed the appeal "as there is
no indication that either attorney is authorized to act on behalf of the child's estate."
Having failed to obtain substantive review in this Court, Ladd then applied for leave to
appeal to the Michigan Supreme Court. In lieu of granting leave, the Supreme Court reversed
this Court's October 1, 1999, order dismissing the appeal and remanded the case to this Court
3
Judge Whitbeck was a member of that panel.
-8-
for consideration on the merits of the issues raised in appellant's issues IV through
IX and XI. Attorney William Ladd is to be entitled to proceed as lawyer guardian
ad litem to represent the interests of the deceased minor. The issues in this case
are of substantial importance, have been fully briefed, and are capable of arising
again in future situations, but evading appellate review.[4]
The Supreme Court also allowed Gonzales to withdraw from the appeal. Thus, this case was
assigned to this panel for a full hearing and decision with Ladd acting as the attorney
representing baby Allison's interests.
III. Overview
We commence with the obvious: baby Allison's life has ended, and we can do nothing to
change that. Fundamentally, then, our task is to provide guidance to the courts that will deal with
similar questions in the future. To that end, the attorneys representing the FIA and baby Allison
have cooperated with our efforts to clarify the record and examine the issues. Additionally, the
American Civil Liberties Union and Legal Services of Southern Michigan, the Children's Section
of the State Bar of Michigan, the Michigan Protection and Advocacy Service, Inc., and a group of
scholars in medical ethics have each provided us with a thoughtful amicus curiae brief.
Unfortunately, there is a mismatch between the way issues are numbered in this Court
and the Supreme Court. There is also a mismatch between the way Ladd has presented issues for
appeal to both courts and his substantive arguments concerning each issue. Consequently, it is
difficult to determine from the Supreme Court remand order which legal questions this Court has
an absolute duty to address. In any event, the Supreme Court's remand order does not prevent
this Court from considering questions and issues not specified. Thus, we have addressed the
widest range of issues necessary to assure that we have satisfied the Supreme Court's remand
order and to create a framework for making decisions in similar end of life cases. Appendix B to
this opinion, post at ___, identifies the issues presented in the application for leave to appeal to
the Supreme Court and specifically locates where we address the respective issues in this
opinion.
In order to organize the widely varying legal questions in this case, we first consider the
issues that involve the broadest legal principles: the family court's jurisdiction; whether any of
the three state statutes or the three federal statutes that Ladd cites prohibited the family court
from entering an order permitting baby Allison's life support to be withdrawn; and the legal and
evidentiary standards that apply to a decision to withdraw life support from an individual who is
the subject of a protective proceeding and who was never competent to make a decision
concerning medical care. We next examine the many interrelated questions concerning
Mahinske's representation, including a child's right to effective assistance of counsel in a
protective proceeding and the procedural requirements affecting substitution of counsel in that
context. In the final sections of the opinion we consider narrower questions, including whether
4
462 Mich 882 (2000).
-9-
the family court was operating under an improper local court rule and whether any errors in this
case were harmless. After the conclusion, we summarize our individual legal holdings in
Appendix A, post at ___, which might serve as a useful reference in the future.
IV. Standard Of Review
Virtually all the issues raised in this appeal present legal questions, subject to review de
novo. Only the question whether withdrawing life support was in baby Allison's best interests
requires a factual determination, therefore meriting review for clear error.6
5
V. Subject-Matter Jurisdiction
A. Authority To Hear A Case
The allegations of neglect in the original petition gave the family court subject-matter
jurisdiction over baby Allison under MCL 712A.2(b)(1) or (2). Ladd, nevertheless, contends that
the family court was divested of its existing subject-matter jurisdiction when the FIA filed the
amended petition seeking to withdraw life support, which changed the focus of the proceedings
from protecting baby Allison to ending her life. Ladd argues that the family court lacks the broad
authority given to the circuit courts under Const 1963, art 6, § 13. Rather, according to Ladd, the
family court's authority is limited to the acts enumerated in the Juvenile Code.7
"Jurisdiction is the power of a court to act and the authority of a court to hear and
determine a case."8 As its name implies, subject-matter jurisdiction describes the types of cases
and claims that a court has authority to address.9 In other words:
"'Jurisdiction over the subject matter is the right of the court to exercise
judicial power over that class of cases; not the particular case before it, but rather
the abstract power to try a case of the kind or character of the one pending; and
not whether the particular case is one that presents a cause of action, or under the
5
See United States Fidelity & Guarantee Co v Citizens Ins Co, 241 Mich App 83, 85; 613
NW2d 740 (2000).
6
See MCR 2.613(C).
7
See MCL 712A.1 et seq.
8
Grubb Creek Action Comm v Shiawassee Co Drain Comm'r, 218 Mich App 665, 668; 554
NW2d 612 (1996).
9
See DAIIE v Maurizio, 129 Mich App 166, 172; 341 NW2d 262 (1983); see also Black's Law
Dictionary (6th ed), p 1425 (Subject-matter jurisdiction is a "court's power to hear and determine
cases of the general class or category to which proceedings in question belong; the power to deal
with the general subject involved in the action.").
-10-
particular facts is triable before the court in which it is pending, because of some
inherent facts which exist and may be developed during the trial.'"[10]
"Jurisdiction of the subject matter of a judicial proceeding is an absolute requirement. It cannot
be conferred by consent, by conduct or by waiver" or "by estoppel."11 Subject-matter jurisdiction
is so critical to a court's authority that a court has an independent obligation to take notice when
it lacks such jurisdiction, even when the parties do not raise the issue.12
Const 1963, art 6, § 15 grants probate courts "original jurisdiction in all cases of juvenile
delinquents and dependents, except as otherwise provided by law." The family division of each
circuit court has replaced the probate court in proceedings concerning custody of juveniles.13
The Juvenile Code, MCL 712A.2(b), specifically grants the family courts in this state subjectmatter jurisdiction of cases concerning children under eighteen years of age if, among other
factors, the child's parents or guardians are neglectful as defined in subsection 1 or have failed to
provide a fit home as defined in subsection 2. This and other statutes comprising the Juvenile
Code are intended to give the family courts extensive authority to protect children.14 Family
courts thus have subject-matter jurisdiction in a large sphere of cases involving children.
In In re Hatcher,15 the Michigan Supreme Court interpreted a family court's subjectmatter jurisdiction, holding that it "is established when the action is of a class that the court is
authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous."16
Accordingly, a family court has subject-matter jurisdiction when the allegations in the petition
provide probable cause to believe that it has statutory authority to act because the child's parent
or guardian neglected the child, failed to provide a fit home, or committed any of the other
10
Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938), quoting Richardson v Ruddy,
15 Idaho 488, 494-495; 98 P 842 (1908), quoting Brown on Jurisdiction, § 1a.
11
Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981).
12
See In re Estate of Fraser, 288 Mich 392, 394; 285 NW 1 (1939).
13
See MCL 600.1021(1)(e); see also MCL 600.1009.
14
See MCL 712A.1(3) ("This chapter shall be liberally construed so that each juvenile coming
within the court's jurisdiction receives the care, guidance, and control . . . conducive to the
juvenile's welfare . . . ."); In re Brock, 442 Mich 101, 107-108; 499 NW2d 752 (1993) ("The
purpose of child protective proceedings is the protection of the child . . . ." and "The juvenile
code is intended to protect children from unfit homes . . . ."); see also In re Macomber, 436 Mich
386, 389; 461 NW2d 671 (1990) ("The Legislature has given a broad grant of authority to the
probate court to protect children who come within its jurisdiction.").
15
In re Hatcher, 443 Mich 426; 505 NW2d 834 (1993).
16
Id. at 437.
-11-
conduct described in the statute.17 Whether the allegations are later proved true is irrelevant to
whether the family court has subject-matter jurisdiction.18
B. Exercising Authority
As Ladd concedes, the allegations in the original petition unambiguously gave the family
court subject-matter jurisdiction. At the first hearing, referee Smart had probable cause to
believe that baby Allison's mother, KB, was incapable of providing baby Allison with "proper
custody" or a fit home because she lacked the mental capacity and financial resources to care for
her daughter. These allegations were serious, not frivolous. The requisite probable cause to
believe that this case fit within the class of cases that a family court may hear under MCL
712A.2(b) clearly existed, thereby justifying the decision to authorize the original petition.19
The amended petition did not allege new or different grounds for the family court's
subject-matter jurisdiction. Rather, the amended petition alleged the same factual foundation for
the family court's continuing subject-matter jurisdiction and asked the family court to exercise its
jurisdiction by "render[ing] a decision about what is in the best interest of this infant." Whether
the family court erroneously determined the scope of its authority to act, erred in deciding what
was in baby Allison's best interests, or failed to follow proper procedures in this case is irrelevant
to whether it had subject-matter jurisdiction.20 As this Court explained in Altman v Nelson:21
Once jurisdiction of the subject matter and the parties is established, any
error in the determination of questions of law or fact upon which the court's
jurisdiction in the particular case depends is error in the exercise of jurisdiction.
Jurisdiction to make a determination is not dependent upon the correctness of the
determination made.
Stated another way, "If the court has jurisdiction of the parties and of the subject matter, it also
has jurisdiction to make an error."22
Ladd, however, presses the relationship between the general purpose of the proceeding
over which a court originally has subject-matter jurisdiction and how it is asked to exercise its
authority. Essentially, he contends that a family court may be asked to take some actions that are
so far removed from the allegations supporting its original jurisdiction over the case that the
court would lack basic authority to act on such a request. Altman does make a fine-line
distinction between acquiring subject-matter jurisdiction and the potentially erroneous exercise
17
Id. at 433-435.
18
Id. at 437-438.
19
See MCR 5.965(B)(9).
20
See Joy, supra.
21
Altman v Nelson, 197 Mich App 467, 473; 495 NW2d 826 (1992).
22
Id.; see also Hatcher, supra at 437.
-12-
of that jurisdiction. However, Altman describes the sort of erroneous exercise of authority that
deprives the court of subject-matter jurisdiction as the "determination of questions of law or fact
upon which the court's jurisdiction in the particular case depends."23 Theoretically, then, some
cases may develop in a direction so unrelated to the grounds for assuming subject-matter
jurisdiction under MCL 712A.2(b) that a family court may not proceed.
Nevertheless, this case does not present such a dramatic change in direction. In the
original petition, the FIA asked the family court to take temporary custody of baby Allison
because someone needed to care for her, which included making medical decisions for her. KB,
baby Allison's mother, would naturally make this sort of decision. However, KB was, at least
allegedly, unable to fulfill this role and no one else had legal authority to make decisions for baby
Allison. In the amended petition, the FIA requested the family court to make an explicit decision
regarding baby Allison's interests because, again allegedly, KB could not do so and no one else
had legal authority to make that decision. The amended petition raised questions of fact and law
that depended entirely on the statutory bases for subject-matter jurisdiction in this case. While
baby Allison's health status may have been changing, her underlying need to have someone make
decisions for her and to care for her remained the same throughout the proceedings. Thus, this
request for a best interests ruling still was within the "class" of cases or issues concerning which
the family court may make a decision.24
Though Ladd attempts to distinguish between the family court's responsibility to protect
children and the effect of removing life support, the request for relief in the amended petition, at
least arguably, did not ask the family court to abandon its duty to protect baby Allison. Rather,
the amended petition asked for a ruling on what course of conduct would be in baby Allison's
best interests. In In re Rosebush,25 this Court held that courts can permit the parents or other
surrogates for an incompetent patient to make serious medical decisions, including whether to
withdraw life support, as long as the decision conforms to the substituted judgment or best
interest criteria, as relevant. The Rosebush Court determined that judicial intervention in the
decision to withdraw life support is warranted if "the parties directly concerned disagree about
treatment, or other appropriate reasons" exist.26
Baby Allison's father was never legally determined. Her putative father's legal situation
called into question his ability to make decisions on her behalf. Baby Allison's mother was,
allegedly, incompetent. The possible absence of an appropriate surrogate to make decisions for
baby Allison did not lessen the urgency of her situation. The staff of Children's Hospital needed
immediate direction concerning baby Allison's care, regardless of whether it was a decision to
continue all medical measures or to withdraw the life-sustaining medical technology in place.
23
Altman, supra at 473 (emphasis added).
24
Hatcher, supra at 444.
25
See In re Rosebush, 195 Mich App 675, 683, 688-690; 491 NW2d 633 (1992); see also In re
Martin, 450 Mich 204; 538 NW2d 399 (1995).
26
Rosebush, supra at 687.
-13-
These, we conclude, were "other appropriate reasons" for the family court to become involved
with the decision concerning baby Allison's care.
C. Treatment As Protection
Ladd cites an unpublished Virginia case, In re Infant C,27 for the proposition that
withdrawing life support is outside the scope of a family court's subject-matter jurisdiction
because it is not medical "treatment." He argues that only therapeutic medical treatment is a
protective measure within the family court's subject-matter jurisdiction.
Yet, the FIA never contended that withdrawing life support was equivalent to medical
treatment in the sense that it had therapeutic or curative value. Dr. Delaney-Black did not
propose removing baby Allison from the ventilator and stopping the prostaglandin as a way to
cure or improve her ailments, or prolong her life. From Dr. Delaney-Black's perspective, no
medical intervention would cure baby Allison's many health problems or prolong her life.
Rather, Dr. Delaney-Black asserted that her purpose in recommending these actions was to allow
baby Allison to live in as little pain as possible because her death was unavoidably imminent. In
this respect, it is at least arguable that Dr. Delaney-Black was acknowledging baby Allison's
common-law right to refuse medical care, a corollary to her right to give informed consent.28 Dr.
Delaney-Black also might have been acknowledging her own interest as a physician in making
her patient as comfortable as possible. Thus, we conclude that it is unnecessary to use the
fiction—and a fiction it surely is—of categorizing withdrawing life support as medical
"treatment" to demonstrate the family court's subject-matter jurisdiction in this case.29
VI. Personal Jurisdiction
Ladd claims that the family court lacked the legal authority to enter an order to withdraw
baby Allison's life support because it lacked personal jurisdiction over baby Allison's mother,
KB, and her putative father, JB. At issue here is whether KB and JB received notice of the
protective proceeding. Aside from the constitutional right to notice inherent in due process,30
respondents in child protective proceedings have a statutory right to notice.31 The absence of this
notice to a respondent in a protective proceeding constitutes a jurisdictional defect.32 Therefore,
27
In re Infant C, 1995 WL 1058596 (Va Cir Ct, 1995).
28
See Rosebush, supra at 680-682; see also In re Martin, supra at 216.
29
See, generally, Causey v St Francis Medical Center, 719 So 2d 1072, 1074 (La App, 1998)
(family claimed that removing life support was unauthorized "treatment" constituting battery).
30
See In re Juvenile Commitment Costs, 240 Mich App 420, 440; 613 NW2d 348 (2000).
31
MCL 712A.12; see also MCR 5.920.
32
See In re Mayfield, 198 Mich App 226, 231; 497 NW2d 578 (1993).
-14-
failure to give adequate notice to a respondent33 in a protective proceeding makes "all
proceedings in the [family] court void,"34 at least with respect to the respondent denied notice.
Determining exactly who was a respondent in a protective proceeding, and therefore
entitled to notice, is often a mundane question answered simply by looking at the caption in a
case or other pleadings. In this case, rather than using a caption listing the respondents, Matlock
drafted the original and amended petitions so that only baby Allison's name appeared in the
caption. Matlock named KB as baby Allison's "mother" and JB as baby Allison's "father," listing
the addresses of their respective residences in the same section of each petition. It would be
wholly illogical to conclude that, even though the FIA as petitioner knew where KB and JB each
were living and denominated them as baby Allison's parents, there were no respondents in this
proceeding. In fact, no one challenges the notion that KB, as baby Allison's mother, was a
respondent.
Nevertheless, a putative father ordinarily has no rights regarding his biological child,
including the right to notice of child protective proceedings, until he legally establishes that he is
the child's father.35 JB never took this step. Still, in this unusual case, because Matlock
identified JB and KB in exactly the same way in the petitions, it appears that JB was a
respondent, despite his status as a putative father. Thus, though referee Smart may have had
authority to conduct the preliminary hearing and place baby Allison before JB and KB received
notice of the proceeding,36 both were entitled to notice of other hearings held in the case.37
There is no way to determine from the record that KB actually received notice of the
second hearing in this case because Matlock gave contradictory statements on the record
regarding her contact with KB. Even assuming that Matlock told KB's aunt about the hearings,
there is no evidence that Matlock asked the aunt to inform KB of any of the hearings. Nor is
there any evidence that KB's aunt told KB about the second hearing. Further, to our knowledge,
KB's aunt was not her legal guardian. Thus, there is no legitimate argument that notice to the
33
The case law holding that failure to give notice is a jurisdictional defect arises in the context of
the hearing to terminate parental rights because of the notice requirement in MCL 712A.12.
However, MCR 5.921(B) uses equally clear mandatory language requiring the family court to
"ensure" notice to certain individuals in other types of hearings. Thus, there is no obvious
rationale for concluding that notice was not necessary in this case because there was no
termination hearing.
34
See In re Atkins, 237 Mich App 249, 251; 602 NW2d 594 (1999).
35
See In re NEGP, 245 Mich App 126, 134; 626 NW2d 921 (2001).
36
See MCR 5.965(B)(1), (2).
37
See MCR 5.921(B)(1)(a).
-15-
aunt, alone, would be sufficient.38 It was error to allow this action to proceed without ever
ensuring39 that KB, regardless of her alleged intellectual limitations, received notice.
The situation surrounding JB is even more complicated. As referee Schummer put it, JB
was unavailable to make decisions because he was incarcerated and "the fact that he is the father
of the mother, as well as the father of the child would lead the Court to believe that he is not
qualified to make that kind of decision anyway." Though apparently also a respondent, the
record does not give us a basis to conclude that JB received notice of the second hearing or that
there were legitimate reasons to deny him notice.40 Even if accurate, moral judgments cannot
take the place of mandated procedures. As a result, though we also have serious doubts about
JB's fitness to make any decision for baby Allison, because the circumstances of this case suggest
that he was a respondent, the failure to notify him of the proceedings was also error.
Nevertheless, it is well settled that the right to notice is personal and cannot be challenged
by anyone other than the person entitled to notice.41 Even if KB and JB would have been able to
challenge any of the orders in this case successfully on the basis of their lack of notice, Ladd,
representing baby Allison's interests, cannot now raise those issues.
VII. Juvenile Code
Ladd argues that the family court exceeded its statutory authority to order emergency
medical care under the Juvenile Code, MCL 712A.1 et seq. He questions the family court's
authority to withdraw life support pursuant to MCL 712A.18f. In practice, MCL 712A.18f(4)
describes the process by which a family court can enter a dispositional order that provides a child
with appropriate care after the family court has determined that the child comes within its
jurisdiction.42 In this context, jurisdiction has a very specific meaning. In order for a child to
come within a family court's jurisdiction, the family court must hold an adjudication, which is a
trial43 on the merits of the allegations in the petition.44 Following the adjudicative hearing,45 the
family court must find that a preponderance of legally admissible evidence46 demonstrates that
there is factual support for one of the grounds permitting judicial involvement under MCL
38
But see id. (notice to respondent is mandatory).
39
MCR 5.921(B)(1) (the family "court shall ensure" notice [emphasis added]).
40
See, e.g., MCR 5.920(E); MCR 5.921(D)(3).
41
See In re Terry, 240 Mich App 14, 21; 610 NW2d 563 (2000).
42
See Macomber, supra at 400 ("There is no general statutory authorization for referees or
judges to make dispositional orders prior to trial.").
43
Alternatively, the respondent may enter a plea of admission or a no contest plea to the
allegations in the petition, making a full trial unnecessary. See MCR 5.971.
44
In re Bechard, 211 Mich App 155, 158; 535 NW2d 220 (1995).
45
See n 41, supra.
46
See MCR 5.972(C)(1); In re Snyder, 223 Mich App 85, 88-89; 566 NW2d 18 (1997).
-16-
712A.2(b).47 Once the family court determines that the child comes within its jurisdiction, it can
enter dispositional orders that govern all matters of care for the child.48
The form used for the "order" allowing the staff of Children's Hospital to withdraw baby
Allison's life support states that it is a "dispositional order." This "order" did resemble a
dispositional order because it directed others in how to care for baby Allison. However, it was
not actually a dispositional order because it was entered before, not after, a dispositional hearing.
A dispositional hearing can occur only after the family court holds an adjudication.49 The formal
proceedings in this case never progressed past the preliminary hearing at which referee Smart
authorized the petition.50 Thus, even if MCL 712A.18f(4) would allow a family court to order
withdrawal of life support for an incompetent minor child already within its jurisdiction, the
family court had not yet acquired jurisdiction over baby Allison. We conclude that the family
court lacked authority to act under MCL 712A.18f.
VIII. MCL 722.124a(1)
A. Medical And Surgical Treatment
Ladd also contends that MCL 722.124a(1) did not allow the family court to withdraw
baby Allison's life support. MCL 722.124a(1) provides:
A probate court, a child placing agency, or the department may consent to
routine, nonsurgical medical care, or emergency medical and surgical treatment
of a minor child placed in out-of-home care pursuant to [MCL 400.1 to MCL
400.121, MCL 710.21 to MCL 712A.28], or this act. If the minor child is placed
in a child care organization, then the probate court, the child placing agency, or
the department making the placement shall execute a written instrument investing
that organization with authority to consent to emergency medical and surgical
treatment of the child. The department may also execute a written instrument
investing a child care organization with authority to consent to routine,
nonsurgical medical care of the child. If the minor child is placed in a child care
institution, the probate court, the child placing agency, or the department making
the placement shall in addition execute a written instrument investing that
47
See Brock, supra at 108-109.
48
See MCR 5.973(A).
49
Id. ("A dispositional hearing is conducted to determine measures to be taken by the court with
respect to the child properly within its jurisdiction . . . once the court has determined following
trial, plea of admission, or plea of no contest that the child comes within its jurisdiction.").
50
See In re Albring, 160 Mich App 750, 756; 408 NW2d 545 (1987); see also Bechard, supra at
157, citing MCR 5.962(B)(3); MCR 5.965.
-17-
institution with authority to consent to the routine, nonsurgical medical care of the
child.[51]
By its language, this statute applies to children "placed in out-of-home care" pursuant to a variety
of statutes concerning child welfare, adoption, and protection, including protective proceedings
under the Juvenile Code, MCL 712A.1 et seq. Unlike MCL 712A.18f, which is tied to the
dispositional phase of a child protective proceeding, MCL 722.124a(1) is not specifically related
to any particular phase in any of the varied child welfare proceedings to which it applies.
Ordering treatment under MCL 722.124a(1) primarily depends on whether the child has been
"placed in out-of-home care." As a result, once a family court places a child in foster care or
other "out-of-home" living arrangement, it has statutory authority to order medical or surgical
treatment in an emergency, or routine, nonsurgical treatment even when there is no emergency.52
Notably, other than distinguishing between routine and emergency treatment, the statute
does not spell out what treatment the family court may or may not order. Nor does the statute
attempt to differentiate between the authority to order medical personnel to give treatment and
the family court's authority to order them to withdraw treatment. More critically, the language in
MCL 722.124a(1) makes no attempt to authorize any emergency activity other than "medical or
surgical treatment." The key word here is "treatment," which as a noun means "the application of
medicines, surgery, therapy, etc., in treating a disease or disorder."53 In turn, the verb "treat"
means "to act or behave toward in some specified way."54 However, it is also defined as "to deal
with (a disease, patient, etc.) in order to relieve or cure."55 Whether the medical technologies
and techniques at issue fall outside the definition of treatment depends on the particular
circumstances of each case.56 However, once interventions, whether medical or surgical, cease to
be "treatment," the question is what legal authority would permit those measures to continue, not
what authority would permit the family court to stop them.
B. Application Of MCR 722.124a(1)
51
Emphasis added.
52
See MCR 5.963, 5.965, 5.973.
53
Random House Webster's College Dictionary (2d ed, 1997), p 1371; see also Hoover Corners,
Inc v Conklin, 230 Mich App 567, 572; 584 NW2d 385 (1998) (presumptively the Legislature
intended to give words in a statute their plain meaning and courts may use dictionary to ascertain
that meaning).
54
Random House Webster's College Dictionary, supra at 1370.
55
Id. (emphasis added).
56
Note, however, that palliative care, such as pain management, nutrition, and even counseling,
may still be effective at "relieving" a patient for whom no cure of an underlying illness is
possible. The facts of this case do not require us to consider whether this statute provides any
basis for ceasing palliative care.
-18-
Whether the family court ever "placed" baby Allison in "out-of-home care" is difficult to
determine on the basis of the record before us. The order entered following the first hearing
ordered the FIA to place baby Allison in foster care or suitable relative care. Yet, baby Allison
never lived with a foster family. Nor does the record reflect that the FIA ever arranged for a
foster family to be involved with baby Allison's care while she was in Children's Hospital. Our
impression from the medical record and Matlock's comments is that members of baby Allison's
extended family, especially her mother's aunts, were involved with baby Allison's care and
medical decisions during her short life. However, we know so little about the kind and extent of
their involvement with baby Allison that we cannot say that she was actually "placed" in their
care, triggering the family court's authority under MCL 722.124a(1). For the most part, the
record suggests that the staff at Children's Hospital cared for baby Allison. However, a hospital
is excluded from the definition of a "child caring institution"57 in which the family court may
place a child for "out-of-home care." Thus, even this informal, though medically necessary,
arrangement for baby Allison's care certainly does not clearly fall within the parameters for
authorizing emergency medical or surgical treatment under MCL 722.124a(1).
Nevertheless, we must resolve this issue even without a satisfactory record. Generally,
the statute makes it possible for a family court or one of the other designated agencies to make
health care decisions for a child when formal custody arrangements make it impossible for a
parent to make a medical decision. In this case, KB was not in a position to make a medical
decision for baby Allison, at least in part because the family court had temporarily removed baby
Allison from her custody. Because JB had not been legally established as baby Allison's father
and the order entered following the preliminary hearing prevented him from having contact with
her, JB was not in a position to make medical decisions for her. Thus, we conclude that the
family court had authority to order medical or surgical treatment for baby Allison pursuant to
MCL 722.124a(1) because the order following the first hearing "placed" baby Allison in "out-ofhome care" and because she had a medical emergency.
This, we think, is the only sensible interpretation and application of MCL 722.124a(1).
In our view, to deprive a family court of the ability to make medical or surgical treatment
decisions for a vulnerable and critically ill child who lacks a parent or guardian to make those
decisions for her contravenes the Legislature's intent to protect children by granting the family
court jurisdiction in protective proceedings.58 Consequently, the confusing custody arrangements
in this case did not eliminate the family court's authority to act under MCL 722.124a(1) once
referee Smart ordered the FIA to place baby Allison in foster care or with a relative.
As we have suggested, whether MCL 722.124a(1) gave the family court authority to order
treatment also included the authority to withdraw life support depends on the circumstances of
each case. Dr. Delaney-Black directly testified that the ventilator and prostaglandin had ceased
to be "medical treatment" for baby Allison and that these measures posed serious risks to her
health. We have significant reservations about the adequacy of this testimony and the family
57
MCL 722.111(1)(b).
58
See Macomber, supra at 389.
-19-
court procedures surrounding it. However, in the abstract, this testimony provided the family
court with statutory grounds to authorize the Children's Hospital medical staff to remove baby
Allison's life support.
C. Limitations
Though MCL 722.124a(1) enabled the family court to act in this case even before holding
an adjudication, we must stress that parties and family courts involved in protective proceedings
must make every possible effort to hold an adjudication before authorizing withdrawal of life
support. We emphasize that making this decision without first conducting an adjudication
creates the very real risk that a family court will intervene in a private family decision when no
grounds under MCL 712A.2(b) actually exist to give the family court jurisdiction to act. In many
cases, the allegations in a petition do not always fully represent the situation. The adjudication is
the time to test those allegations so a family court can decide whether it has cause to become
involved in a case. Just as importantly, MCL 722.124a(1) does not exist in a legal vacuum. As
we will explain in greater detail, there are other procedural and substantive requirements that a
family court must fulfill before it can order withdrawal of life support for an incompetent patient.
IX. CAPTA
Ladd argues that even if state law allowed the family court to order the staff of Children's
Hospital to withdraw the life-sustaining medical care baby Allison was receiving, the federal
Child Abuse Prevention and Treatment and Adoption Reform Act (CAPTA)59 prevented the FIA
from seeking such an order.60 Thus, he in essence contends that the family court lacked the
authority to act on the FIA's illegal request.
In order to be eligible to receive CAPTA funds to prevent child abuse and neglect,61
Congress requires, among other conditions,
an assurance that the State has in place procedures for responding to the reporting
of medical neglect (including instances of withholding of medically indicated
treatment from disabled infants with life-threatening conditions), procedures or
programs, or both (within the State child protective services system), to provide
for—
* * *
59
42 USC 5101 et seq. Although truncated, CAPTA is the common acronym used for this act.
60
The parties and some of the organizations serving as amici curiae have hotly debated whether
the state has any legitimate interest in petitioning the family court to withdraw life support.
However, we restrict our analysis to whether CAPTA prevents the FIA from seeking a court
order that permits withdrawal of life support.
61
Jeanine B v Thompson, 877 F Supp 1268, 1285-1286 (ED Wis, 1995).
-20-
(iii) authority, under State law, for the State child protective services
system to pursue any legal remedies, including the authority to initiate legal
proceedings in a court of competent jurisdiction, as may be necessary to prevent
the withholding of medically indicated treatment from disabled infants with life
threatening conditions.[62]
In Michigan, the FIA functions as the chief agency in the state child protective services system.
Consequently, if CAPTA applies, the FIA has a duty to prevent neglect, which includes
"withholding . . . medically indicated treatment from disabled infants with life threatening
conditions." At a theoretical level, this duty to prevent neglect might be viewed as contrary to a
petition seeking to withdraw life support. However, 42 USC 5106g(6) specifically defines when
withholding treatment constitutes medical neglect:
[T]he term "withholding of medically indicated treatment" means the
failure to respond to the infant's life-threatening conditions by providing treatment
(including appropriate nutrition, hydration, and medication) which, in the treating
physician's or physicians' reasonable medical judgment, will be most likely to be
effective in ameliorating or correcting all such conditions, except that the term
does not include the failure to provide treatment (other than appropriate nutrition,
hydration, or medication) to an infant when, in the treating physician's or
physicians' reasonable medical judgment—
(A) the infant is chronically and irreversibly comatose;
(B) the provision of such treatment would—
(i) merely prolong dying;
(ii) not be effective in ameliorating or correcting all of the infant's lifethreatening conditions; or
(iii) otherwise be futile in terms of the survival of the infant; or
(C) the provision of such treatment would be virtually futile in terms of the
survival of the infant and the treatment itself under such circumstances would be
inhumane.[63]
We can assume for the sake of analysis that Michigan is subject to CAPTA and that baby
Allison was a "disabled infant" within the meaning of the act. Nevertheless, 42 USC 5106g(6)
indicates that Congress did not prohibit withdrawing life support in all circumstances. Rather, if
62
42 USC 5106a(b)(2)(B) (emphasis added).
63
Emphasis added.
-21-
one64 of the individual circumstances enumerated in 42 USC 5106g(6) exists, withdrawing life
support from a critically ill infant does not constitute medical neglect.
According to Dr. Delaney-Black's testimony, baby Allison was conscious, not sedated.
This suggested that baby Allison was not "chronically and irreversibly comatose." As a result,
the exception in 42 USC 5106g(6)(A) did not allow the FIA to ask the family court to permit the
staff of Children's Hospital to withdraw life support from baby Allison.
However, Dr. Delaney-Black's testimony provided evidence that each of the conditions
for exclusion under 42 USC 5106g(6)(B) and (C) applied in this case. In Dr. Delaney-Black's
medical opinion, no available treatment would cure or alleviate baby Allison's life-threatening
heart (and possibly intestinal) problems, while maintaining her on a ventilator and providing her
with prostaglandin would do nothing more than temporarily delay her imminent death. In Dr.
Delaney-Black's own words, continuing these "futile" treatments was "not a humane decision."
Thus, even if CAPTA does require the FIA to prevent medical neglect, the FIA did not violate
that duty by asking the family court to determine what would be in baby Allison's best interests,
because that request was not medical neglect as Congress defined that term.
64
Congress drafted 42 USC 5106g(6) in the disjunctive, indicating that a health condition need
not meet every circumstance listed to be excluded from the definition of medical neglect. See,
generally, Caldwell v Chapman, 240 Mich App 124, 131; 610 NW2d 264 (2000).
-22-
X. EMTALA
A. Stabilization
Ladd contends that the order to withdraw baby Allison's life support violated her right to
have her emergency medical condition stabilized under the Emergency Medical Treatment and
Active Labor Act (EMTALA).65 Because baby Allison's life depended on a ventilator and
prostaglandin, Ladd claims that EMTALA required the medical staff at Children's Hospital to
provide these medical interventions indefinitely in order to stabilize her condition. Essentially,
Ladd argues that a family court may not enter an order that violates a patient's EMTALA rights.
EMTALA requires hospitals with emergency departments that receive Medicare funds to
screen patients for emergency conditions within the medical capabilities of the facility.66 If the
patient has an emergency medical condition, the hospital must provide "[n]ecessary stabilizing
treatment."67 If the hospital is unable to treat the patient's emergency medical condition, it may
transfer the patient to a facility that can render the necessary care after providing the care that is
within the transferring hospital's capabilities.68 Otherwise, the hospital must stabilize the
patient's emergency medical condition before transferring the patient to another facility.69
B. Baby K And Bryan
There is very little case law interpreting EMTALA in the context of withdrawing life
support, and none from Michigan. The most relevant and well-known cases both come from the
Fourth Circuit of the United States Court of Appeals.
Ladd relies entirely on In re Baby K,70 the first of these Fourth Circuit cases. When Baby
K was born, doctors determined that she was anencephalic, meaning that she had "a congenital
malformation in which a major portion of the brain, skull, and scalp are missing."71 Baby K did
have a brain stem, which allowed her autonomic system to continue to function even though she
was permanently unconscious.72 Physicians placed Baby K on a ventilator because she began
experiencing difficulty breathing.73 Because anencephalic babies typically die soon after birth,
65
42 USC 1395dd.
66
42 USC 1395dd(a).
67
42 USC 1395dd(b).
68
42 USC 1395dd(b)(1)(B); see also 42 USC 1395dd(c)(2).
69
42 USC 1395dd(b)(1)(A).
70
In re Baby K, 16 F3d 590 (CA 4, 1994).
71
Id. at 592.
72
Id.
73
Id.
-23-
the physicians believed that any treatment would be futile.74 The physicians asked the mother to
approve a medical order not to resuscitate Baby K in the future, but the mother refused.75
When the mother and hospital staff could not agree on Baby K's care, the hospital
contacted other local hospitals to determine if any of them would be willing to provide Baby K
with the care her mother wanted.76 No other hospitals with pediatric intensive care units were
willing to undertake this care, but Baby K's mother was able to transfer her to a nursing home
during a period when she did not need a ventilator to aid her breathing.77 While at the nursing
home, Baby K had to be readmitted to the hospital three times because of respiratory distress.78
After Baby K's second emergency hospital admission, the hospital brought a declaratory
action in the federal district court seeking judicial approval to abstain from providing any
aggressive treatment for Baby K in the future.79 Baby K's guardian ad litem and her biological
father joined with the hospital in opposing the mother's efforts to use any medical intervention
available to keep Baby K alive.80 The district court, however, denied the requested relief.81
On appeal, the court found the hospital's arguments unpersuasive, especially in light of
the hospital's concession that ventilator support or other aggressive treatment would be necessary
to stabilize Baby K in the emergency room if she were in respiratory distress.82 The court
rejected the proposition that anencephaly, not respiratory distress, was the emergency medical
condition Baby K exhibited and for which she needed treatment in the hospital's emergency
room.83 The court found no statutory language or Congressional intent to excuse the hospital
from providing stabilizing medical care for emergency conditions even if treatment would be
futile in the long term and therefore above the standard of care.84 Finally, the court concluded
that there was no statutory support for the argument that stabilization is necessary only if the
hospital is transferring the patient to another facility.85 As the court noted, hospitals would be
able to evade their duty to treat emergency medical conditions simply by refusing to transfer a
74
Id.
75
Id. at 592-593.
76
Id. at 593.
77
Id.
78
Id.
79
Id.
80
Id.
81
Id.
82
Id. at 594-595.
83
Id. at 595-596.
84
Id. at 596.
85
Id. at 597.
-24-
patient if this interpretation of EMTALA were correct.86 Thus, the court held87 that "EMTALA
gives rise to a duty on the part of the Hospital to provide respiratory support to Baby K when she
is presented at the Hospital in respiratory distress and treatment is requested for her."88
The second relevant EMTALA case from the Fourth Circuit, which Ladd does not cite, is
Bryan v Rectors & Visitors of Univ of Virginia.89 According to the complaint in Bryan, the
decedent, Shirley Robertson, was transferred to the University of Virginia Medical Center
(UVMC) when she suffered respiratory distress.90 Robertson's family asked UVMC staff to
make all efforts to keep her alive.91 Against their wishes, twelve days after Robertson was
admitted to UVMC, the hospital's staff gave a "do not resuscitate" order for her.92 Eight days
later, UVMC staff allegedly failed to stabilize Robertson,93and she died.
Cindy Bryan sued on behalf of Robertson's estate, alleging that UVMC's failure to
stabilize Robertson violated EMTALA and caused her death.94 The federal district court
dismissed the suit after it concluded that state tort law, not EMTALA, governed how a hospital
must treat a patient once the patient leaves the emergency room and is admitted to the hospital.95
On appeal, the court reviewed the legislative history of EMTALA, observing that "Congress's
sole purpose in enacting EMTALA was to deal with the problem of patients being turned away
from emergency rooms for non-medical reasons."96
Once EMTALA has met that purpose of ensuring that a hospital
undertakes stabilizing treatment for a patient who arrives with an emergency
condition, the patient's care becomes the legal responsibility of the hospital and
the treating physicians. And, the legal adequacy of that care is then governed not
by EMTALA but by the state malpractice law that everyone agrees EMTALA was
not intended to preempt. . . . Such reprehensible disregard for one's patient as
Bryan hypothesizes would not constitute the "dumping" at which EMTALA aims
86
Id. at 597-598.
87
Id. at 592; see also id. at 598.
88
When the Sixth Circuit partially rejected Baby K and interpreted EMTALA to require evidence
of "improper motive" in a hospital's transfer decision, the United States Supreme Court reversed.
Roberts v Galen of Virginia, Inc, 525 US 249; 119 S Ct 685; 142 L Ed 2d 648 (1999).
89
Bryan v Rectors & Visitors of Univ of Virginia, 95 F3d 349, 351 (CA 4, 1996).
90
Id. at 350.
91
Id.
92
Id.
93
Id.
94
Id. at 349-350.
95
Id. at 350.
96
Id. at 351.
-25-
but the well established tort of abandonment, which the states may expand or
constrict as they deem just but which Congress evidenced no desire to federalize.
Presumptively aware of this feature of state tort law, Congress did not address a
hypothetical problem that was not before it but addressed a national scandal that
was: emergency rooms' turning away patients at the door for inability to pay or
other similar reasons.
. . . [T]he stabilization requirement [in EMTALA] was intended to
regulate the hospital's care of the patient only in the immediate aftermath of the
act of admitting her for emergency treatment and while it considered whether it
would undertake longer-term full treatment or instead transfer the patient to a
hospital that could and would undertake that treatment. It cannot plausibly be
interpreted to regulate medical and ethical decisions outside that narrow
context.[97]
The court also rejected Bryan's argument that Baby K extended EMTALA's protections beyond
the emergency room, stating, "The holding in Baby K . . . turned entirely on the substantive
nature of the stabilizing treatment that EMTALA required for a particular emergency medical
condition. The case did not present the issue of the temporal duration of that obligation, and
certainly did not hold that it was of indefinite duration."[98] Thus, the court affirmed the district
court's order dismissing the case because Bryan could not show that UVMC staff failed to
stabilize Robertson when she arrived in the emergency room, even if the hospital's subsequent
conduct may have violated other legal duties.99
C. EMTALA Applied
We assume for the sake of analysis that Children's Hospital does receive Medicare funds
and has an emergency room. However, there is no evidence of an EMTALA violation in this
case. Unlike in Baby K, there is no evidence that baby Allison, who was born in Oakwood
Hospital, was ever sent to Children's Hospital's emergency room for treatment. Also unlike the
situation in Baby K, in this case Children's Hospital did not attempt to create a policy that would
have its emergency room staff treat babies with baby Allison's conditions differently than other
patients who required prostaglandin and ventilator support.
This case is much closer to Bryan because baby Allison had been admitted to Children's
Hospital for more than a week when the staff made the decision to discontinue the medical
interventions. Children's Hospital staff might be liable for withdrawing baby Allison's life
support, especially because they did not wait for the seven-day judicial-review-request period to
end. However, applying Bryan's holding to this case, the actions of the Children's Hospital staff
were not an EMTALA violation because baby Allison had been admitted as a patient at the time
97
Id. at 351-352 (emphasis added).
98
Id. at 352.
99
Id. at 353.
-26-
the staff withdrew life support. The only hospital conduct in this case involving EMTALA was
Oakwood Hospital's decision to transfer baby Allison to Children's Hospital. However,
Oakwood Hospital staff fulfilled EMTALA's mandate by stabilizing baby Allison before
transferring her to a hospital with the facilities necessary to care for her.
Even if Bryan did not fit this case as well as it does, the language Congress used in
EMTALA would still require this result. The standards EMTALA puts in place affecting
treatment specifically control hospital conduct, not patient autonomy or decisions by appropriate
surrogates. There simply is no evidence that EMTALA abrogates the common-law right to
informed consent and the corollary right to refuse treatment, much less any other applicable
statutory rights. In sum, putting aside the other serious questions this case poses, the "order"
permitting Children's Hospital staff to withdraw baby Allison's life support outside the context of
emergency room treatment did not implicate EMTALA, much less violate it.
XI. ADA And PWDCRA
Ladd contends that the family court and the FIA violated the Americans with Disabilities
Act (ADA), 42 USC 12101 et seq., by presuming that baby Allison's mother was incompetent to
make decisions for her. Ladd argues that baby Allison's mother and baby Allison were denied
their mutual rights to have baby Allison or a "legally designated surrogate" make medical
decisions for baby Allison, that both their rights to have access to the courts were violated, and
that they were denied their substantive rights to a familial relationship. Ladd claims that because
of the way the FIA and the family court perceived baby Allison's disabilities, the FIA and the
family court acted prematurely in seeking and approving discontinuation of her life support.
Ladd also asserts that these same actions violated KB's rights and baby Allison's rights under the
Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. Thus, Ladd argues
that the "order" permitting Children's Hospital staff to withdraw baby Allison's life support was
legally invalid because it was a product of proceedings that violated these antidiscrimination
laws.
These are serious allegations. Not only is discrimination by the courts and state agencies
typically contrary to these statutes,100 discrimination is incompatible with the evenhanded
treatment we expect state agencies and courts to give to individuals. Nevertheless, three
considerations convince us not to address the merits of these arguments.
100
See Terry, supra at 25-26 (the FIA is subject to the ADA); see also Soto v City of Newark, 72
F Supp 2d 489, 494-495 (DNJ, 1999) (court violated the ADA by refusing three requests by
profoundly deaf plaintiffs to provide a qualified sign language interpreter at their wedding
ceremony in a courthouse, which plaintiffs could not understand); Matthews v Jefferson, 29 F
Supp 2d 525, 534 (WD Ark, 1998) (county court violated the ADA by scheduling three hearings
in a second-floor courtroom that the wheelchair-bound litigant could not access); State v PE, 284
NJ Super 309, 316-317; 664 A2d 1301 (1994) (the ADA and state antidiscrimination law
required a court to appoint an attorney to represent a mentally ill defendant in order to ensure the
defendant's court access).
-27-
First, the briefing on these issues is inadequate to allow this Court to decide whether the
FIA or the family court violated the ADA or the PWDCRA.101 Second, this Court has implicitly
held that a party must raise ADA claims in the family court before they can be asserted as a
defense on appeal.102 This requirement is consonant with our ordinary issue preservation
standard.103 As a result, we conclude that a party must also raise PWDCRA claims in the family
court before being allowed to make arguments concerning the PWDCRA on appeal. Yet, neither
Ladd nor Mahinske raised the ADA or PWDCRA issues in the family court. Third, addressing
Ladd's arguments regarding the ADA and the PWDCRA as grounds for reversal in this case
would be imprudent because it would require making original factual findings without the benefit
of an adequate record, which is especially problematic because appellate courts do not sit as triers
of fact.
Even if these considerations did not dissuade us from addressing the substance of Ladd's
arguments, Green v North Arundel Hosp Ass'n, Inc,104 persuades us that parties cannot use the
ADA or the PWDCRA to challenge the result of proceedings in a case that did not originally
allege an ADA or PWDCRA violation. Green was a medical malpractice action parents brought
on behalf of their minor child against the physicians who treated the child for hydrocephaly.105
The defendants moved to bar the child from the courtroom during the liability phase of trial.106
After observing the child's disabilities in a videotape, the judge granted the motion.107
The plaintiffs in Green did not succeed in the malpractice suit.108 On appeal, they
claimed that excluding the child from the trial violated the ADA.109 After examining the text of
the ADA, the Maryland appellate court, however, concluded:
[T]he ADA allows for action only against the public entity for prospective
injunctive relief—there is nothing in the ADA that provides a basis for reversing
the judgment of a lower court in a civil dispute between private parties.
Therefore, assuming, arguendo, that [the trial judge's] ruling constituted a
violation of the ADA, this would only give [the child plaintiff] a separate cause of
action for injunctive relief against the trial judge in his official capacity as a
judicial officer of the State—it would not constitute reversible error in the case
101
See Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
102
Terry, supra at 27.
103
See In re Hildebrandt, 216 Mich App 384, 388; 548 NW2d 715 (1996).
104
Green v North Arundel Hosp Ass'n, Inc, 126 Md App 394; 730 A2d 221 (1999), cert gtd 356
Md 17 (1999), aff 'd 2001 WL 1491567 (Md).
105
Id. at 398.
106
Id. at 400.
107
Id.
108
Id. at 401.
109
Id. at 416.
-28-
sub judice. Thus, whether [the trial judge's] exclusion of [the child plaintiff] from
trial violates the ADA is irrelevant to the outcome of this case.[110]
Green's reasoning, that the ADA cannot be used as a procedural challenge to the outcome of a
case when the ADA is not a claim tried in that case, applies here. Further, like the appellate
court in Maryland, we find no support in the PWDCRA's language for allowing a discrimination
claim to alter the outcome of a proceeding involving unrelated grounds. In short, even if the
ADA and the PWDCRA would permit baby Allison and her mother to sue for the way they were
treated by the FIA and in the family court,111 whether we affirm or reverse depends solely on the
independent legal validity of the decisions and procedures used in this protective proceeding.112
Discriminatory conduct in judicial proceedings may give rise to a due process or equal protection
claim,113 which are legally cognizable means to invalidate the outcome or a particular aspect of a
judicial proceeding.114 However, the PWDCRA and the ADA do not provide the same relief in
cases not originally involving those antidiscrimination acts.
XII. Legal And Evidentiary Standards For Withdrawing Life Support
A. Ladd's Argument
Ladd contends that a family court must comply with the following requirements before it
can enter an order permitting medical professionals to withdraw life-sustaining medical care.
First, he asserts that the family court must determine whether the patient is competent to make
decisions regarding medical treatment. A patient who is competent must be allowed to make the
medical decision. Second, he argues that if the patient is incompetent, the family court must
designate a surrogate to become involved in the decision. Third, he claims that a physician other
than the physician treating the patient must confirm the patient's diagnosis and prognosis.
Fourth, he argues that in order to justify withdrawing life support, the court making the decision
must have evidence that meets the clear and convincing standard. Fifth, he avers that any hearing
on the matter must comply with due process, which excludes ex parte hearings. Finally, he
110
Id. at 416-417.
111
But see Bd of Trustees of the Univ of Alabama v Garrett, 531 US 356, 375; 121 S Ct 955; 148
L Ed 2d 866 (2001) (eliminating right to money damages in ADA title I suits against states, but
not the right to sue for injunctive relief).
112
See Green, supra at 417-423 (considering whether child's exclusion from the courtroom
violated his rights to due process or access to the courts as a member of the public).
113
See People v Brown, 173 Mich App 202, 213-214; 433 NW2d 404 (1988), rev'd on other
grounds sub nom People v Juillet, 439 Mich 34; 475 NW2d 786 (1991) (unavailing due process
and equal protection claims for discrimination on the basis of his status as a former state senator).
114
See, generally, People v Bearss, 463 Mich 623, 630; 625 NW2d 10 (2001) (reversed and
remanded because Court of Appeals violated defendant's right to due process by directing a
guilty verdict on a cognate lesser offense); Green, supra at 417-423; People v Collins, 239 Mich
App 125, 133-138; 607 NW2d 760 (1999) (defendant entitled to resentencing because the trial
court's restitution order violated his right to equal protection).
-29-
contends that a judge, not a hearing referee, must make the ultimate decision regarding whether
to withdraw life support.
The proceedings in this case, Ladd insists, failed to comply with these standards other
than with respect to the issue whether baby Allison was incompetent to make decisions for
herself, which was undisputed. Thus, he claims, the "order" purporting to allow the staff of
Children's Hospital to remove life support from baby Allison is subject to reversal on each of the
other grounds. As the following analysis indicates, we not only agree, we find an additional flaw
in the proceedings in this case involving allegations that the incompetent patient's parent or other
surrogate is also incompetent.115
B. Patient Competency And The Decisional Standards
Competent patients have the right to make medical decisions, including the decision to
cease any medical intervention, under the doctrine of informed consent.116 According to
Rosebush, "The right to refuse lifesaving medical treatment is not lost because of the
incompetence or the youth of the patient."117 Though legally still minors and considered
otherwise incompetent, some young patients may be sufficiently "mature" to exercise this right
on their own.118 Thus, the mere fact that the medical decision involves a child subject to a
protective proceeding does not conclusively resolve whether the patient is competent to make the
necessary decision. In short, because a competent patient's right to make any medical decision is
absolute,119 if the facts of a case do not reveal conclusively whether a patient is competent to
make a decision, the family court should make a direct inquiry concerning competency by means
of an evidentiary hearing.120
When the patient is incompetent, a court considering whether to continue life support
must determine whether the "substituted judgment" or the "best interests" legal standard
applies.121 The substituted judgment standard seeks to fulfill the expressed wishes of a
previously competent patient, including a "minor of mature judgment."122 The "limitedobjective" substituted judgment standard used in Michigan requires "'some trustworthy evidence
115
Although not addressed in the briefs originally filed in this appeal, we have given Ladd, the
FIA, and the amici curiae an opportunity to address this issue.
116
See Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991), citing Cruzan v
Director, Missouri Dep't of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), and In
re Quinlan, 70 NJ 10; 355 A2d 647 (1976).
117
See Rosebush, supra at 681-682.
118
Id. at 682, n 4.
119
See Werth, supra.
120
See, generally, Martin, supra at 209-210 (hearing to determine whether to withdraw life
support also included evidence establishing that patient could not make his own decision).
121
See Rosebush, supra at 683.
122
Id. at 688-689.
-30-
that the patient would have refused the treatment, and the decision-maker is satisfied that it is
clear that the burdens outweigh the benefits of that life for'" the patient.123
The best interests standard applies when the patient has never been competent or has not
expressed her wishes concerning medical treatment.124 The best interests standard includes, but
is not limited to, examining:
"[E]vidence about the patient's present level of physical, sensory,
emotional, and cognitive functioning; the degree of physical pain resulting from
the medical condition, treatment, and termination of the treatment, respectively;
the degree of humiliation, dependence, and loss of dignity probably resulting from
the condition and treatment; the life expectancy and prognosis for recovery with
and without treatment; the various treatment options; and the risks, side effects,
and benefits of each of those options."[125]
There are a number of theoretical problems with applying the best interests standard when
presuming that the common-law right to refuse medical treatment provides the authority to
withdraw life support.126 However, the Michigan Supreme Court has not wholly rejected the best
interests standard.127 Consequently, as the law exists today, there is no absolute bar to applying
the best interests standard to a decision to withdraw life support in a protective proceeding.
In this case, there is no question that baby Allison was incompetent to make any decision
concerning her own medical care, which directly points to the best interests standard as the
relevant decisional standard in this case.128 Further, the FIA and Ladd agree that the best
interests standard was appropriate.129 Referee Schummer, therefore, did not err in deciding to
apply the best interests standard to his factual findings and recommendation.
C. Surrogate Decisionmakers
123
Id. at 688, quoting In re Conroy, 98 NJ 321, 365; 486 A2d 1209 (1985).
124
See Rosebush, supra at 689-690.
125
Id. at 690, quoting In re Guardianship of Grant, 109 Wash 2d 545, 568; 747 P2d 445 (1987),
amended 757 P2d 534 (1988), quoting Conroy, supra at 397 (Handler, J., concurring in part and
dissenting in part).
126
See Martin, supra at 222. Note that this case revolves around MCL 722.124a(1) and does not
completely rely on the common-law right to refuse care.
127
See Martin, supra at 223-225 (only declining to apply the best interests standard because the
patient had been competent and had expressed his wishes).
128
Rosebush, supra at 682.
129
Cf. In re KI, 735 A2d 448 (US App DC, 1999).
-31-
Ladd claims that once a family court determines that a patient is incompetent, it must
appoint a guardian ad litem to protect the patient.130 As support for this proposition, he points to
Rosebush, which states, "[W]here the parents of a minor child for some reason are themselves
incompetent to act as surrogate decision makers, and other family members are unavailable or
unwilling to act as surrogates, a guardian should be appointed to exercise the minor's rights on
behalf of the minor."131 The Rosebush Court never had to address whether a family court should
appoint a guardian ad litem because both parents of the minor patient in that case were
(presumably) competent and involved in the decision to withdraw the child's life support.132
Rosebush, by approving the reasoning in In re Guardianship of Barry,133 also rejected the
proposition that parents must qualify as guardians before being allowed to decide to withdraw
their minor child's life support,134 which suggests that appointing a guardian ad litem is not
always necessary. Further, In re Shaffer135 holds that a family court need not routinely appoint
different individuals to serve as guardian ad litem and attorney for a child in a protective
proceeding. Of course, Shaffer was decided before the lawyer-guardian ad litem provisions in
MCL 712A.17d were effective. Shaffer thus applies in this case and suggests that appointing
only an attorney for baby Allison was legally adequate.
Nevertheless, other case law indicates that appointing a guardian ad litem for a legally
incompetent patient who does not have a natural guardian, such as a parent, or a legal guardian to
make a serious medical decision is often a prudent step to take.136 As a practical matter,
protective proceedings in which end-of-life medical care becomes an issue may require a
guardian ad litem and an attorney for the child so that they may work with each other to respond
to the urgency of the situation.137 We do not hold that a family court must appoint a guardian ad
litem in every protective proceeding concerning important medical decisions, especially if it
decides to appoint a guardian or is acting while the new lawyer-guardian ad litem provisions are
effective. However, generally, the need to appoint a guardian ad litem tends to increase as the
seriousness of the medical decision increases and as the time in which to make a decision
decreases.
130
Ladd's arguments as a whole lead us to believe that in this argument he is referring to a
guardian ad litem, not a guardian. In no way do we intend to change the family court's ability to
appoint a guardian for a child in a protective proceeding.
131
Rosebush, supra at 682, n 5.
132
Id. at 679.
133
In re Guardianship of Barry, 445 So 2d 365, 372 (Fla App, 1984).
134
Rosebush, supra at 685, 687.
135
In re Shaffer, 213 Mich App 429, 432-433; 540 NW2d 706 (1995).
136
See Rosebush, supra at 686-687, quoting In re LHR, 253 Ga 439, 446-447; 321 SE2d 716
(1984).
137
See Shaffer, supra at 434-436.
-32-
Here, the medical decision was the gravest possible. No one individual seemed a likely
candidate to act on baby Allison's behalf, at least from the perspective of the information
available. Referee Smart presided at the first hearing, referee Schummer at the second. Other
than Matlock, not one person who was at the first hearing participated in the second hearing.
Even if Ladd was expected to function as both an attorney representing baby Allison and her
guardian ad litem, he was excluded from the second hearing. This made his appointment wholly
ineffective as a measure to protect or represent baby Allison. The scope and nature of
Mahinske's duties to baby Allison are unclear. In any event, she was a latecomer to the
proceedings. This threw into question whether she could actually function as a guardian ad litem
or attorney for baby Allison. This lack of continuity made it difficult, if not impossible, to ensure
that baby Allison's interests were adequately and consistently represented. Taken together, these
factors persuade us that the hearing referees erred in failing to appoint a guardian ad litem for
baby Allison, whether that guardian ad litem was a relative or another person. Though MCL
712A.17d may make a separate guardian ad litem unnecessary in the future, under the
circumstances of this case, a guardian ad litem was necessary to ensure baby Allison's welfare.138
D. Surrogate Incompetence
Ladd's guardian ad litem argument raises one of the central issues in this case: the proper
procedure that a court must follow when there is an allegation that the parent or surrogate who
would otherwise make a medical decision for the incompetent patient is also incompetent. This
issue presents a truly thorny dilemma. On the one hand, to ignore allegations that the parent or
other surrogate is incompetent might allow a person fundamentally unsuited to the task to make a
critical life and death decision. On the other hand, to accept at face value the allegations that the
parent or other surrogate is incompetent risks depriving the correct decisionmaker of the
opportunity to make a decision.
Case law provides no direct guidance on the issue of surrogate incompetency. However,
after examining competency issues in other contexts, we conclude that determining the
competence of a parent or surrogate by engaging in a formal process, such as when a criminal
court must determine whether a defendant is competent to stand trial, makes little sense in
practice.139 Instead, this issue must be resolved as any other factual dispute is resolved: with
evidence appropriate to the circumstances. This evidence must demonstrate on the record that
the person who would otherwise act as the surrogate decisionmaker for the incompetent patient is
also incompetent to make the critical medical decision at issue. Further, the evidence must be
clear and convincing. Any lower evidentiary standard brings with it a potential for abuse leading
to irreparable harm because there typically is no adequate remedy for an erroneous order
withdrawing life support. This clear and convincing evidence standard comports with the
fundamental liberty interest, protected by the Fourteenth Amendment, that parents have in caring
for their children.140 While doing nothing to lessen the quality or quantity of evidence necessary
138
MCR 5.916(A).
139
See MCL 330.2020 et seq.
140
See Troxell v Granville, 530 US 57, 64-65; 120 S Ct 2054; 147 L Ed 2d 49 (2000).
-33-
to justify judicial intervention in a private decision, the clear and convincing evidence standard is
sufficiently flexible to address a wide variety of situations.
Further, making a decision to withdraw life support is so serious that it is unlike any other
decision a family court has to make. This decision goes far beyond severing the legal
relationship between a parent and child, as family courts must do in some protective proceedings.
When a family court terminates parental rights, a child may still choose to seek out biological
family members after reaching adulthood. Even if the family never reunites, a parent has the
reassurance that the child will have an opportunity to live to be an adult. By contrast, traditional
happy endings are impossible when removing life support.
We think it important to draw a distinction between cases in which the parent cannot
make a decision for the child because of incompetency or another legitimate reason141 and cases
in which the factors bringing the case to the family court's attention are unrelated to the parent's
competency or other factors that would disqualify the parent as a decisionmaker. Simply put,
jurisdiction over the child alone is not reason enough for a court to make a decision to withdraw
life support. Rather, the record must provide clear and convincing evidence to support the court's
determination that it, not a parent or other surrogate, must make the decision to withdraw life
support. Thus, when the allegation is that the parent or other surrogate is incapable of making a
decision concerning the patient's care because of incompetency, there must be clear and
convincing evidence that this incompetency actually exists.
It almost goes without saying that no such clear and convincing evidence of KB's alleged
incompetence existed on the record in this case. Not a single person who participated at a
hearing in this case or who had any role in the legal decision to withdraw baby Allison's life
support had ever personally met KB. KB did not appear at any of the hearings. Even without a
presumption of competency, there is absolutely no reliable evidence that KB was incompetent to
make decisions for baby Allison.142
The FIA attempts to minimize the lack of evidence that KB was incompetent by
submitting affidavits from Matlock and KB's aunt in which both refer to KB's alleged mental
limitations. However, this Court may not consider these affidavits, which were prepared sixteen
months after baby Allison died, because they are not part of the lower court record.143 We have
no reason to believe that Matlock, KB's aunt, or anyone else misrepresented what they perceived
to be KB's limitations. Indeed, we suspect that these allegations may be true. However, a mere
suspicion is not enough. Without any direct, or even legally admissible, evidence of KB's
141
For instance, we doubt that a parent who physically abuses the child who is a patient is
capable of weighing the competing considerations involved in determining the best interests of
the child in an end-of-life decision. However, we decline to determine conclusively what these
other reasons might be.
142
Ladd does not argue that JB should have been allowed to decide whether to withdraw baby
Allison's life support.
143
Reeves v Kmart Corp, 229 Mich App 466, 481, n 7; 582 NW2d 841 (1998).
-34-
incompetence, there is no way to exclude the possibility that she was competent to make a
decision that Rosebush determined was ordinarily a parent's right to make.144 Even if there were
no other grounds for reversal, our resolution of this issue would warrant that outcome.
E. Independent Physician Confirmation
Ladd argues that a family court may not depend on a single treating physician's
assessment of an incompetent patient's health and prognosis when deciding to remove life
support. He relies on Rosebush and the authority cited in the Rosebush opinion to support this
argument. Although Rosebush approved of the procedures outlined in Barry145 and In re LHR,146
both of which had two physicians to confirm the medical diagnosis, Rosebush does not explicitly
require independent physician confirmation. Indeed, while an ethics panel reviewed Joelle
Rosebush's case, the Rosebush opinion does not suggest that an independent physician confirmed
her diagnosis or prognosis.147 Moreover, the passages from Barry and LHR cited in Rosebush do
not indicate that at least one physician who had not been involved in treating a patient render an
opinion before a family court can decide to withdraw life support.
There are a number of competing interests for and against having an independent
physician confirm a patient's diagnosis and prognosis. However, we conclude that it is
incumbent on the petitioner to provide a second opinion from an independent physician or
establish why this second opinion is not necessary. This fits in the context of the best interests
analysis articulated in Rosebush, which already directs courts to consider a variety of factors
relevant to the patient's prognosis and treatment options,148 and thus does not require a separate
analysis.149 The family court may weigh the presence or absence of medical consensus, the
factors that contributed to medical disagreement or agreement, and the factors that make any
independent physician opinion more or less relevant to the ultimate decision to withdraw life
support. Plainly, the family court did not engage in any such weighing here.
F. Procedural Due Process
Ladd contends that due process requires that parents be given notice and an opportunity to
be heard at any hearing related to a request to withdraw life support from their child. This Court
has observed:
144
Rosebush, supra at 683, 687.
145
Barry, supra at 372.
146
LHR, supra at 446-447.
147
Rosebush, supra at 679.
148
Id. at 690.
149
A physician confirmation rule is inappropriate in cases in which the patient is competent and
refuses treatment or cases in which a previously competent patient clearly expressed a treatment
preference, no matter the degree of medical consensus. To hold otherwise would eviscerate the
patient's right to give or withhold consent to treatment. See Martin, supra at 221-222.
-35-
The federal and Michigan constitutions guarantee that the state cannot
deny people "life, liberty, or property without due process of law." Due process,
which is similarly defined under both constitutions, specifically enforces the rights
enumerated in the Bill of Rights, and it also provides for substantive and
procedural due process. Procedural due process limits actions by the government
and requires it to institute safeguards in proceedings that affect those rights
protected by due process, such as life, liberty, or property.[150]
At issue here is the right to procedural due process.151 A procedural due process analysis
requires a court to consider "(1) whether a liberty or property interest exists which the state has
interfered with, and (2) whether the procedures attendant upon the deprivation were
constitutionally sufficient."152
There is no question that parents have a due process liberty interest in caring for their
children153 and that child protective proceedings affect that liberty interest.154 As a result, a court
considering withdrawing life support from a child who is the subject of a protective proceeding
must determine whether its procedures are "constitutionally sufficient."155 Whether procedures
are adequate depends on the factors enunciated in Mathews v Eldridge:156
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
The fundamental principle underlying these factors, which constitute a balancing test, is that due
process "'is flexible and calls for such procedural protections as the particular situation
demands.'"157
150
Kampf v Kampf, 237 Mich App 377, 381-382; 603 NW2d 295 (1999) (citations omitted).
151
See Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154 (1976).
152
Jordan v Jarvis, 200 Mich App 445, 448; 505 NW2d 279 (1993), citing Kentucky Dep't of
Corrections v Thompson, 490 US 454, 460; 109 S Ct 1904; 104 L Ed 2d 506 (1989).
153
See Troxell, supra.
154
See In re Kirkwood, 187 Mich App 542, 546; 468 NW2d 280 (1991).
155
Jordan, supra at 448.
156
Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).
157
Id. at 334, quoting Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484
(1972).
-36-
In light of the private interests that can be affected with an order permitting life support to
be withdrawn and the risk of erroneous deprivation of that right in an ex parte hearing, we agree
that ex parte hearings are undesirable when making this sort of decision. However, to the extent
that Ladd asks us to create an absolute bar to ex parte hearings, we decline the invitation. There
may be a case in which the state's interest in providing care for children might outweigh a
respondent's right to notice and an opportunity to be heard when the state provides additional
safeguards. Such a case certainly would be an exception, not the rule, but nevertheless might be
constitutionally sound under due process principles.158 We are confident that the law is
sufficiently well developed to guide courts addressing many different situations, including this
end-of-life issue.
Due process protected baby Allison's parents' liberty interest in raising their child.159
Baby Allison's parents also had a virtually exclusive interest in making a decision to withdraw
life support, rendering judicial involvement in the decision not only rare, but of significant
consequence for their rights as parents.160 Though this case presents some of the most disturbing
facts imaginable, it was not constitutionally acceptable to deny baby Allison's mother due process
because of her alleged incompetence or to deny her putative father due process because of the
crimes he may have committed. The right to due process protects individuals who are allegedly
incompetent161 and criminals ultimately convicted of the most heinous crimes.162 As a result, we
conclude that baby Allison's mother, KB, and her putative father, JB, were entitled to procedural
safeguards in this child protective proceeding.
As the discussion of the personal jurisdiction issue indicates, we have strong suspicions
that neither parent had actual notice of the two hearings. This also suggests that they were
deprived of their due process right to notice and an opportunity to be heard. Assuming that KB
and JB were denied notice and an opportunity to be heard, the risk of erroneous deprivation of
their due process rights was different at the two hearings. The order entered following the first
hearing instructed the medical staff to do all that was necessary to sustain baby Allison's life.
This order addressed the crisis immediately at hand but still allowed KB and JB to have notice
and an opportunity to be heard at a subsequent hearing, which referee Smart actually scheduled.
Because baby Allison's precarious medical condition constituted an emergency and the state had
a legitimate interest in doing what it could to protect her life, holding an initial hearing and then
158
See, generally, Hodgson v Minnesota, 497 US 417, 447, n 32; 110 S Ct 2926; 111 L Ed 2d
344 (1990) (Stevens, J.) (common law permits one parent to act as an agent for the other parent).
159
See Troxell, supra; Kirkwood, supra.
160
Rosebush, supra at 687.
161
See, generally, In re KB, 221 Mich App 414, 418-422; 562 NW2d 208 (1997) (individual
subject to civil commitment is entitled to due process, though procedures at issue were adequate).
162
See, generally, People v Duncan, 462 Mich 47, 55-57; 610 NW2d 551 (2000), quoting and
adopting Harmon v Marshall, 69 F3d 963 (CA 9, 1995) (complete failure to define an offense for
the jury violated the criminal defendant's right to due process).
-37-
providing for notice and an opportunity to be heard later was not just permissible under the court
rules,163 it was also constitutionally sound.164
The second hearing presents a vastly different picture. The record again strongly suggests
that neither KB nor JB had notice of or an opportunity to be heard at the second hearing. The
"order" permitting the Children's Hospital staff to remove baby Allison's life support was not
intended to be effective for seven days, which would have allowed KB or JB to petition for
rehearing.165 The state did nothing to violate this seven-day period; Children's Hospital staff,
apparently in consultation with some members of baby Allison's family, took the action that
directly caused baby Allison's death. Yet, baby Allison's death was the predictable result of the
"order" entered following the second hearing. This foreseeable risk of erroneously depriving her
parents' interests was undeniably quite high.
Critically, the FIA has never placed any substantial evidence on the record that would
justify withdrawing life support without parental notice and participation in this case. While
giving parents notice and an opportunity to be heard may cause some burden for the state, the
burden is not only minimal, the state shoulders it regularly. In fact, the petitions included JB's
and KB's names and addresses. Given the irreversible nature of an order permitting a hospital to
withdraw life support, we conclude that KB and JB were entitled to notice of the second hearing
and an opportunity to participate in it as the most "rudimentary" of due process protections.166
The denial of this notice and opportunity to be heard was a constitutional violation.
G. Clear And Convincing Evidence
Ladd argues that "clear and convincing" is the proper evidentiary standard to apply to a
decision to withdraw life support. We agree. According to In re Martin, when courts apply the
substituted-judgment decisional standard, the proper evidentiary standard is clear and
convincing.167 In other words, "the proofs in sum must meet the exacting standard of clear and
convincing evidence"168 by demonstrating that "the patient's prior statements clearly illustrate a
serious, well thought out, consistent decision to refuse treatment under these exact
circumstances, or circumstances highly similar to the current situation . . . ."169
Because of its limited focus on a formerly competent patient, Martin does not resolve the
evidentiary standard for a best interests determination, which applies to a patient who was never
163
See MCR 5.965(B)(1), (2).
164
Kampf, supra at 383-384.
165
See MCR 5.992.
166
See Bundo, supra at 696.
167
Martin, supra at 225-229.
168
Id. at 229.
169
Id. at 229.
-38-
competent or had never expressed her wishes concerning medical care. However, the reasoning
in Martin supporting the clear and convincing standard is overwhelmingly persuasive.170 The
Martin Court noted that the clear and convincing standard is the highest level of proof required in
civil proceedings and determined that it is appropriate because it places the risk of error on the
party petitioning to withdraw life support.171 By favoring the status quo, this relatively high
evidentiary standard provides an opportunity for meaningful appeal because the patient may still
be alive. Therefore, we adopt the clear and convincing evidentiary standard for best interests
determinations concerning withdrawing life support.
Ladd, however, claims that referee Schummer was unaware that the clear and convincing
evidentiary standard applied to this best interests determination and, therefore, recommended
withdrawing baby Allison's life support on the basis of inadequate evidence. Referee
Schummer's comments at the second hearing and his written findings and recommendations
closely match each other. In the space of one page, those written findings and recommendations
briefly summarized the evidence before considering a number of factors that the Rosebush Court
indicated were appropriate.172 On the whole, it appears that referee Schummer recommended
withdrawing baby Allison's life support because, in his view, the risks associated with continuing
this type of medical care significantly outweighed the benefits, implicitly concluding that it was
in baby Allison's best interests to withdraw her life support.
However, it is apparent to us that referee Schummer simply did not seek out sufficient
information to recommend the decision to withdraw baby Allison's life support.173 For example,
Dr. Delaney-Black's testimony suggested that there was at least one other physician treating baby
Allison and that she and this other physician (or physicians) agreed that baby Allison was going
to die regardless of whether she remained on the ventilator and received prostaglandin. Yet,
when none of the lawyers presented referee Schummer with a second medical opinion, he did not
ask if one was available or why one was unnecessary. Referee Schummer did not even have a
copy of baby Allison's medical record, which was submitted to the family court only in response
to the motion for the review hearing in March 1999, after baby Allison died.
Referee Schummer clearly considered Dr. Delaney-Black's opinion incontrovertible. In
reality, Dr. Delaney-Black's opinion may have been uncontroverted simply because no other
physician was called to testify. Though every other physician may have agreed completely with
Dr. Delaney-Black, referee Schummer apparently did not even consider the possibility that baby
Allison's diagnosis and prognosis might be debatable. Nor did he ask to hear testimony from
anyone else who had seen baby Allison or was concerned about her.
170
See id. at 225-227.
171
Id.
172
See Rosebush, supra at 690.
173
See MCR 5.923(A).
-39-
Certainly, the evidence on the record was clear. Dr. Delaney-Black's testimony directly
supported referee Schummer's findings and recommendation and the ultimate "order." However,
this evidence was not convincing. If baby Allison were still alive, we would remand this case to
the family court for an evidentiary hearing so the family court could develop a minimally
acceptable record describing baby Allison's diagnosis and prognosis as viewed by others. If that
were impossible or unnecessary, the family would have an opportunity to explain its conclusion.
On the basis of this inadequate record, we simply cannot find convincing evidence to support a
decision to authorize Children's Hospital to withdraw baby Allison's life support. Therefore, we
conclude that this decision was clear error.
H. Judicial Decisionmaker
Ladd maintains that a judge, not a hearing referee, must make the decision to withdraw
life support in every case. Again, we agree. MCL 712A.10 defines the scope of a hearing
referee's authority, providing in relevant part:
(1) Except as otherwise provided in subsection (2), the judge of probate
may designate a probation officer or county agent to act as referee in taking the
testimony of witnesses and hearing the statements of parties upon the hearing of
petitions alleging that a child is within the provisions of this chapter, if there is no
objection by parties in interest. The probation officer or county agent designated
to act as referee shall do all of the following:
(a) Take and subscribe the oath of office provided by the constitution.
(b) Administer oaths and examine witnesses.
(c) If a case requires a hearing and the taking of testimony, make a written
signed report to the judge of probate containing a summary of the testimony taken
and a recommendation for the court's findings and disposition.
Neither the court rules nor any statute permits a hearing referee to enter an order for any purpose.
In fact, that a hearing referee must make and sign a report summarizing testimony and
recommending action for a judge reveals that the Legislature specifically denied referees the
authority to enter orders, no matter their substance.174
To paraphrase the Michigan Supreme Court in Campbell v Evans,175 we do not doubt that
hearing referees play an extremely valuable role in the operation of the family courts, especially
when attempting to handle emergency cases. However, a hearing referee's recommendations and
proposed order cannot be accepted without judicial examination.176 "They are a helpful time174
MCL 712A.10(1)(c).
175
Campbell v Evans, 358 Mich 128, 131; 99 NW2d 341 (1959).
176
See id.
-40-
saving crutch and no more. The responsibility for the ultimate decision and the exercise of
judicial discretion in reaching it still rests squarely upon the trial judge" and may not be
delegated.177 Consequently, when it is apparent that someone other than a judge made the
substantive legal decision in a case, the only appropriate appellate response is to reverse.178 This
holds true regardless of whether the case concerns end-of-life issues.
There is no way to demonstrate, solely on the basis of the record, that referee Schummer
actually stamped the name of the family court judge on this "order" permitting Children's
Hospital to withdraw life support. However, it is reasonable to assume that he did so. Referee
Schummer's statements at the close of the second hearing are redolent with an assumed judicial
authority. Referee Schummer not only referred to himself as the "Court," he spoke on the record
of his "decision" to "authorize the medical procedures . . . as requested," and the right to "appeal"
that decision to a family court judge and this Court. The signature on the order is plainly from a
rubber stamp, not handwritten. The signature stamp was likely affixed on the same day as the
date stamp, which indicates that the order had been examined by a judge on February 18, 1999.
Although the family court stated at the review hearing that it had reviewed the record, it did not
state that it had reviewed referee Schummer's findings and recommendations on February 18,
1999. In fact, read closely, the family court's approval of those findings and recommendations
permits us to infer that it had not reviewed referee Schummer's findings and recommendations
until it was preparing to address the petition for review. This was after the "order" was "entered"
in the sense that it was placed in the lower court record, representing that it was legally binding.
On the whole, the scant evidence in the record supports Ladd's argument that referee Schummer
acted outside his authority by "entering" the "order" permitting withdrawal of baby Allison's life
support.
The FIA attempts to place the blame for baby Allison's premature death on the shoulders
of the staff of Children's Hospital who withdrew her life support before the seven-day period
specified in the "order" elapsed. Had the medical staff not acted so precipitously, the FIA
contends, baby Allison would have been able to obtain judicial review of that "order." However,
if anything, this is an additional error in this case, not an excuse for other errors. The point is not
just that baby Allison was deprived of a full judicial review hearing or a rehearing before her
death rendered those proceedings meaningless. Rather, she was also deprived of her right to
have a family court judge make the most serious decision in this case—a decision that ended her
life—in the first instance.
Nor did the review hearing make the "order" withdrawing baby Allison's life support
legally valid. A review hearing under MCR 5.991 presupposes that an order has not been entered
dealing with the subject of the hearing over which a referee presided. Rather, as MCR 5.991(A)
177
Id.; see also Mann v Mann, 190 Mich App 526, 538-539; 476 NW2d 439 (1991) ("The trial
court also committed clear legal error in delegating to the Friend of the Court the child support
determination.").
178
The Campbell Court also remanded for a new hearing. Campbell, supra at 131. However,
when no relief is available, a remand to supplement the record would be purposeless.
-41-
and (E) suggest, the review hearing is intended to allow a judge to determine whether to "affirm,
modify, or deny the recommendation of the referee in whole or in part" in a resulting order.179
Even if MCR 5.991 effectively permitted the family court to hold review hearings to make an
order valid by approving it retroactively,180 the family court did not attempt to do so in this case.
The family court did not endorse the "order" at the review hearing in the sense that it made any
representation that it had reviewed referee Schummer's findings and recommendations, that it had
personally signed and entered the "order," or that it was somehow taking responsibility for the
"order" one month after its supposed entry. In reality, the review hearing in this case was more
like a rehearing under MCR 5.992, in which a "judge may affirm, modify, or vacate the decision
previously made in whole or in part . . . ."181 However, there was no valid decision to rehear.
The court rules and statutes prescribing procedures for protective proceedings are not just
technical obstacles that may be discarded in the name of expediency or even in the
understandable rush to protect a child. Rather, taken together, the statutes and court rules reflect
standards that are essential to the administration of justice. The statutes and court rules make the
proper procedures in a protective proceeding clear. It should be equally clear that they must be
followed. Thus, we conclude, the way the "order" was entered following the second hearing
constituted independent error requiring reversal because of this significant deviation from MCL
712A.10.
XIII. Counsel
A. Ladd's Argument
Ladd raises several arguments concerning baby Allison's right to counsel. First, he
maintains that baby Allison's right to counsel imposed substantive obligations on her attorneys.
Second, he claims that his participation in the first hearing constituted a formal appearance as
baby Allison's attorney under the court rules. Third, he contends that his failure to file a written
appearance did not excuse the FIA and the family court from giving him notice of the second
hearing. Fourth, he argues that substituting Mahinske was improper without a determination on
the record that there was good cause to substitute counsel. Fifth, he asserts that Mahinske failed
to act effectively on behalf of AMB as she was required to do.
Some of Ladd's individual counsel issues do not relate directly to whether Mahinske
rendered effective assistance of counsel, his centerpiece argument. Nevertheless, examining the
procedures that apply to counsel for a minor child in a protective proceeding illustrates the nature
of an attorney's obligation to a minor child. Viewed broadly, the question we must consider is
what, or how much, a minor child can expect of the attorney appointed to represent the child in a
protective proceeding. Narrowly, the question we must address is whether baby Allison was
afforded the representation to which she was entitled.
179
Emphasis added.
180
See Mann, supra at 529-530.
181
MCR 5.992(D) (emphasis added).
-42-
B. Right To Effective Counsel
The Sixth Amendment right to counsel and the analogous state right to counsel
articulated in Const 1963, art 1, § 20 do not apply directly to child protective proceedings
because these proceedings are civil, not criminal, in nature.182 Although certain elements of a
criminal defendant's rights to an effective attorney apply in child protective proceedings, the right
to counsel in a protective proceeding is statutory, not constitutional.183
Published case law pays little attention to a child's right to counsel in a protective
proceeding. However, this Court has held that a child's right to counsel is the right to "zealous
advocacy" under MCL 712A.17c(7), as well as the analogous court rule, MCR 5.915(B)(2).184 In
fact, both MCL 712A.17c(7) and MCR 5.915(B)(2) provide basic information about the
obligations an attorney has to a minor child who is her client.
In February 1999, MCL 712A.17c(7)185 stated, in pertinent part:
The appointed attorney shall observe and, dependent upon the child's age
and capability, interview the child. If the child is placed in foster care, the
attorney shall, before representing the child in each subsequent proceeding or
hearing, review the agency case file and consult with the foster parents and the
caseworker. The child's attorney shall be present at all hearings concerning the
child and shall not substitute counsel unless the court approves.
The plain language of this provision imposed duties on an attorney to investigate and consult.
Even performing these duties in a minimal manner would have allowed an attorney to learn (1)
the circumstances that led to the protective proceeding, (2) what a child who was capable of
communicating viewed as her needs, (3) what the adults involved in the case viewed as the
child's needs, and (4) what services were being provided for the child to address those needs.
Implicit in this legislative directive was a requirement that an attorney act on this information so
that the family court orders the care a child needs. Had the Legislature not intended to impose on
attorneys the obligation to act on behalf of a minor client, the Legislature would not have
required the attorney to appear at the hearings. MCR 5.915(B)(2) also reflects a child's right to a
competent attorney and is substantively similar to MCL 712A.17c, as it appeared in February
1999.
The Child Protection Law, MCL 722.621 et seq., which requires legal representation for
children who are involved in court proceedings because of abuse or neglect, is also instructive.
182
See In re EP, 234 Mich App 582, 597; 595 NW2d 167 (1999), overruled on other grounds by
In re Trejo Minors, 462 Mich 341, 353, n 10; 612 NW2d 407 (2000).
183
EP, supra at 598.
184
Shaffer, supra at 433; see also id. at 434, 436.
185
See 1997 PA 169.
-43-
When this case was pending in February 1999, MCL 722.630186 enumerated more specific duties
for an attorney appointed under the Child Protection Law. At that time MCL 722.630 stated:
The court, in every case filed under this act in which judicial proceedings
are necessary, shall appoint legal counsel to represent the child. The legal
counsel, in general, shall be charged with the representation of the child's best
interests. To that end, the attorney shall make further investigation as he deems
necessary to ascertain the facts, interview witnesses, examine witnesses in both
the adjudicatory and dispositional hearings, make recommendations to the court,
and participate in the proceedings to competently represent the child.
MCL 722.630 went beyond MCL 712A.17c(7) and the analogous court rule by prescribing the
standard that must guide the attorney's representation and the need to investigate, use
professional judgment, and participate in proceedings in both an active and competent manner.
Yet, this version of MCL 722.630 clearly referred to the protective proceeding that can be
instituted following a report under the Child Protection Law. Plainly, then, the duties of a lawyer
in a case stemming from a report of child abuse or neglect are the duties of all lawyers
representing children in protective proceedings. In fact, the Child Protection Law, MCL
722.622(a), defines an "attorney" by referring to the obligations of an attorney as described in the
Juvenile Code, MCL 712A.13a.187 Thus, though MCL 712A.17c(7) as in effect in February 1999
did not describe an attorney's duties in great detail, MCL 722.630 illustrated those duties.
In both the Child Protection Law and the Juvenile Code, the Legislature made clear that a
child's attorney has the same duties that any other client's attorney would fulfill when
necessary.188 Those duties, such as the duty to investigate, examine witnesses, and appear at
hearings on behalf of the client, are inherent in each attorney's ethical obligations. For instance,
MRPC 1.1 mandates that "[a] lawyer shall provide competent representation to a client."
Subsection b of that rule prohibits a lawyer from "handl[ing] a legal matter without preparation
adequate in the circumstances." As the comment following MRPC 1.1 relates:
Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners. It also includes
adequate preparation. The required attention and preparation are determined in
186
See 1975 PA 238, § 10.
187
That MCL 722.630 and MCL 712A.17c(7) were amended at the same time to incorporate the
new lawyer-guardian ad litem standards under MCL 712A.17d and that both amendments
became effective March 1, 1999, indicates that the attorneys appointed under either of these
statutes had identical, substantive duties. See 1998 PA 480; 1998 PA 483.
188
Again, MCL 712A.17d changed the relationship between a child and the child's lawyer for
cases after March 1, 1999. However, though this discussion of an attorney's duties might be of
limited benefit in future cases, it is necessary to set a foundation for analyzing Ladd's claim that
Mahinske was ineffective.
-44-
part by what is at stake; major litigation and complex transactions ordinarily
require more elaborate treatment than matters of lesser consequence.
Even in high stakes cases with a great deal of urgency, attorneys have specific ethical obligations.
The comments following MRPC 1.1 further explain:
In an emergency, a lawyer may give advice or assistance in a matter in
which the lawyer does not have the skill ordinarily required where referral to or
consultation or association with another lawyer would be impractical. Even in an
emergency, however, assistance should be limited to that reasonably necessary in
the circumstances, for ill-considered action under emergency conditions can
jeopardize the client's interest.[189]
Thus, lawyers have duties to their clients that may transcend the minimum standards of conduct
that the Legislature imposes in a statute. Clients, whether children or adults, have the right to
expect their attorney will perform these duties. Indeed, the right to an attorney would be
meaningless if a minor child who is the subject of a proceeding that can change—or end—her
life could not expect that the attorney representing her will do so effectively.
Case law does not prescribe standards to determine whether a child was denied the
effective assistance of counsel. There is a conceptual misfit between the defective performance
and prejudice test190 for ineffective assistance of counsel claims in criminal cases and the
question of effective assistance to a child in a protective proceeding. Unlike the defendant and
prosecutor in a criminal proceeding, a child and the petitioner in a protective proceeding do not
always have adverse interests. When a child's attorney performs inadequately, the petitioner may
still protect the child's interests, eliminating any prejudice to the child.
In our view, the best analysis of a child's right to effective assistance under the system of
representation in place before March 1, 1999, requires determining whether the attorney's
conduct complied with the applicable statutes,191 court rules, rules of professional conduct, and
any logically relevant case law.192 To merit relief, there must be evidence that the defective
representation led to an outcome that was not clearly in the child's best interests. This adaptation
of the traditional test for ineffective assistance of counsel is fitted to the special purpose of a
protective proceeding:193 acting in the child's best interests.
189
Emphasis added.
190
See People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).
191
The new statutory standards that apply to a lawyer-guardian ad litem articulate many basic
requirements that, though not germane in this case, will be relevant to determining whether an
attorney is performing adequately in future cases. 1998 PA 480, MCL 712A.17d.
192
EP, supra at 598.
193
We are not, in any way, attempting to define the scope of or test for a respondent's right to
effective assistance of counsel in a protective proceeding.
-45-
If there is proof that a child was denied her right to effective assistance of counsel, the
critical issue then becomes determining the appropriate remedy. In Shaffer, having determined
that the children were denied the effective assistance of counsel, this Court remanded the case for
further proceedings, essentially reinstituting the protective proceeding despite the probate court's
decision to return the children to their mother.194 Though we have no relief to offer baby Allison,
Shaffer implies that the full panoply of necessary remedies are available to a child denied the
effective assistance of counsel in a protective proceeding.
C. Appearance And Notice
Ladd's contention that his appearance in the family court at the first hearing constituted a
formal appearance is part of an indirect challenge to the way referee Schummer ensured—or
failed to ensure—that baby Allison was represented by competent counsel at the second hearing.
Ladd apparently contends that failing to give him notice of the hearing, to which he was entitled
under MCR 5.921(B)(1)(c), functionally deprived baby Allison of adequate representation. This
claim that he formally appeared is calculated to contradict the FIA's argument that he was not
baby Allison's lawyer at the second hearing.
MCR 5.915(C) states that "[t]he appearance of an attorney is governed by MCR
2.117(B)." MCR 2.117(B), in turn, prescribes in relevant part:
(1) In General. An attorney may appear by an act indicating that the
attorney represents a party in the action. An appearance by an attorney for a party
is deemed an appearance by the party. Unless a particular rule indicates
otherwise, any act required to be performed by a party may be performed by the
attorney representing the party.
(2) Notice of Appearance.
(a) If an appearance is made in a manner not involving the filing of a paper
with the court, the attorney must promptly file a written appearance and serve it
on the parties entitled to service. The attorney's address and telephone number
must be included in the appearance.
(b) If an attorney files an appearance, but takes no other action toward
prosecution or defense of the action, the appearance entitles the attorney to service
of pleadings and papers as provided by MCR 2.107(A).
According to MCR 5.915(E), an attorney who is appointed by the court to represent a party
remains the client's attorney "until discharged by the court."195 Having not been "discharged" by
194
See Shaffer, supra at 430, 437.
195
Though an order appointing an attorney for a child may constitute an appearance, no order
specifically appointing Ladd to represent baby Allison exists in the record in this case.
-46-
the family court at any time in these proceedings, Ladd was baby Allison's attorney at all times in
this case.196 This entitled Ladd to notice of other proceedings.197
Ladd does not contend that he actually filed a written appearance before the second
hearing, which occurred on February 17, 1999. Yet, it is not clear whether this was a failure to
comply with the filing requirement in MCR 2.117(B)(2)(a). Though MCR 2.117(B)(2)(a)
required Ladd to file a written appearance with the family court "promptly," the court rule neither
defines promptness nor penalizes a failure to file a written appearance "promptly."
The FIA attempts to justify its failure to give notice to Ladd by noting that referee
Schummer had not presided at the first hearing and did not know that Ladd represented baby
Allison. However, when referee Schummer commenced the second hearing, Mahinske stated
that she was appearing for baby Allison as "emergency house counsel." This was sufficient to
inform referee Schummer that Mahinske was not the attorney originally appointed to represent
baby Allison and to prompt him to inquire into Ladd's whereabouts.198 If that information did
not appear in the record or if Mahinske did not know that Ladd was baby Allison's attorney,
Matlock, who was at the first hearing, could have revealed that Ladd had already appeared. If
Matlock did not know Ladd's name, the assistant attorney general representing the FIA at the
second hearing should have had that information.199 In short, there were ways to determine who
was representing baby Allison in this case, but no one involved in second hearing attempted to do
so. Consequently, referee Schummer did not "ensure" that Ladd, who was entitled to notice,
actually received notice of the hearing or that there were any circumstances that would have
excused notice to him.200 This was error.
D. Mahinske's Substitution
We know of no absolute requirement that the same attorney represent a child throughout
a protective proceeding. In fact, there may be good reasons not to require that an attorney
appointed on the spot to represent a child at a preliminary hearing continue to represent the child
in the rest of the protective proceeding. However, when read together, MCR 5.915(B)(2)(a), the
attorney appearance rule, and MCR 5.915(E), the attorney discharge rule, demonstrate a policy
that favors consistent legal representation when possible, thereby disfavoring attorney
substitutions. Not surprisingly, then, MCR 5.915(B)(2)(d) provides:
The court may permit another attorney to temporarily substitute for the
child's attorney at a hearing, if that would prevent the hearing from being
196
MCR 5.915(E).
197
MCR 5.920(F).
198
See MCR 5.915(B)(2)(a).
199
See, generally, People v Fountain, 407 Mich 96, 99; 282 NW2d 168 (1979) (courts presume
that attorneys from the same office have the same information).
200
MCR 5.921(B)(1).
-47-
adjourned, or for other good cause. An attorney who temporarily substitutes for
the child's attorney must be familiarized with the case and, for hearings other than
a preliminary hearing or emergency removal hearing, must review the agency case
file and consult with the foster parents and caseworker prior to the hearing unless
the child's attorney has done so and communicated that information to the
substitute attorney. The court shall inquire on the record whether the attorneys
have complied with the requirements of this subrule.
The word "shall" makes the court's inquiry into the temporary substitute's readiness mandatory.201
There is no basis to presume that the Supreme Court intended for this to be an empty inquiry. If
the substitute attorney is not prepared to proceed, there would be good cause for an adjournment
under MCR 5.923(G)(2).
Referee Schummer knew, or should have known, that Mahinske was not baby Allison's
appointed counsel but he did not ask Mahinske on the record about her preparation. He did not
even ask a pro forma, "Ready?" of the attorneys. Referee Schummer plainly failed to comply
with MCR 5.915(B)(2)(d). Whether Mahinske was prepared to represent baby Allison or
whether she failed to bring to referee Schummer's attention the fact that she was not prepared
does not, under the language of this court rule, excuse referee Schummer's failure to make this
inquiry. This inquiry is designed to ensure that the court, in this case referee Schummer, is aware
of whether the attorney representing the child is prepared to proceed. As protection for the child,
MCR 5.915(B)(2)(d) acknowledges that many children do not attend protective proceedings, nor
do they have the capacity, maturity, experience, or schooling to understand when an attorney is
failing to represent their interests adequately. It is therefore incumbent on the court to make this
inquiry.
While a failure to conduct this inquiry would be rendered harmless if the child
nevertheless received effective representation, our analysis indicates that Mahinske did not act
effectively under the circumstances. Thus, under the specific facts of this case, referee
Schummer's failure to conduct this inquiry constituted error requiring reversal.
E. Mahinske's Preparation And Performance
The criminal case law concerning effective assistance of counsel indicates that, absent an
evidentiary hearing, only errors that plainly exist on the record can demonstrate ineffectiveness
that violates the right to counsel.202 Although we might remand this case for an evidentiary
hearing to clarify a number of issues related to Mahinske's representation, remand would only
waste scarce judicial resources because there is no remedy for baby Allison. Thus, we examine
the record to determine whether Mahinske performed defectively and whether any such
ineffectiveness prejudiced baby Allison by leading to a result that was not in her best interests.
201
See Scarsella v Pollak, 232 Mich App 61, 64; 591 NW2d 257 (1998), affirmed and adopted
461 Mich 547, 549; 607 NW2d 711 (2000).
202
See People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).
-48-
Ladd recites a litany of acts that he claims demonstrates Mahinske's performance was
ineffective. In fact, an attorney can be ineffective for failing to investigate a case, prepare for a
proceeding, call and examine witnesses, present a legal argument, object to improper testimony,
or myriad other actions if they are sufficiently prejudicial.203 In this case, we agree that
Mahinske's failure to ask for a continuance or otherwise demonstrate on the record that she was
prepared to represent baby Allison was deficient performance. The record does not reveal
whether Mahinske was "familiarized with the case," had "review[ed] the agency case file and
consult[ed] with the . . . caseworker prior to the hearing," determined that "the child's attorney
ha[d already] done so," or whether Ladd conveyed that information to her.204 We can assume
that Ladd had not communicated any necessary information to Mahinske in time for the second
hearing, because he did not learn about that hearing until after it had occurred. Though courts
traditionally presume an attorney acted effectively absent compelling evidence to the contrary,205
the tone of Mahinske's capitulation to the FIA's request for authorization to withdraw baby
Allison's life support and her failure to question Matlock suggest that whatever preparation she
undertook was not adequate. Minimally, Mahinske should have asked for a continuance to
prepare.
Even, however, if Mahinske technically complied with MCR 5.915(B)(2)(d) by doing
some preparation for the second hearing, she had no meaningful knowledge of what her
obligations to baby Allison meant in practice. For instance, Mahinske did not have an absolute
duty to arrange for Dr. Delaney-Black to testify in person.206 However, Mahinske had an
obligation to investigate whether she could rely on Dr. Delaney-Black's testimony as wholly
authoritative. In other words, even if Mahinske did not or could not secure a second opinion
from an independent physician, she should have developed the record so that it reflected why the
family court could trust Dr. Delaney-Black's testimony completely.
The FIA claims that Ladd is not entitled to raise this effective assistance of counsel issue
because he was also ineffective during the family court proceedings. This is nonsense. In
essence, the FIA argues that two incompetent attorneys somehow negate each other's allegedly
harmful effects on their client. The FIA has not provided any authority to support this argument,
and, not surprisingly, we have found none. Baby Allison was entitled to an attorney who would
represent her competently. In light of her inadequate preparation and her acquiescence in the
decision to withdraw life support without convincing evidence, we conclude that Mahinske's
representation was ineffective.
203
See, generally, People v Snider, 239 Mich App 393, 424; 608 NW2d 502 (2000); In re Ayres,
239 Mich App 8, 21-22; 608 NW2d 132 (1999); People v Rockey, 237 Mich App 74, 76-77; 601
NW2d 887 (1999); People v Truong (After Remand), 218 Mich App 325, 338-339; 553 NW2d
692 (1996); People v Julian, 171 Mich App 153, 158-159; 429 NW2d 615 (1988).
204
MCR 5.915(B)(2)(d).
205
See People v Williams, 240 Mich App 316, 331; 614 NW2d 647 (2000).
206
MCR 5.923(E).
-49-
XIV. Local Court Rule
Ladd claims that the order permitting the staff of Children's Hospital to end baby
Allison's life support was invalid because referee Schummer relied on an unapproved local court
rule permitting "medical authorization" petitions. As Ladd points out, in Schlender v
Schlender,207 this Court reversed a trial court's order denying a motion for a change in child
custody after concluding that the trial court had improperly denied the movant an evidentiary
hearing pursuant to a local court rule that the Supreme Court had not approved.
The problem with applying Schlender to this case is there is absolutely no evidence of a
local court rule or administrative policy guiding the proceedings. Though the record includes a
number of references to a petition for "medical authorization," Ladd has not provided the Court
with a copy of any local court rule or policy in effect in February 1999, much less one that
purports to allow or control petitions seeking permission for medical treatment. Though the FIA
has submitted a copy of the Third Judicial Circuit's case management rule C.9 dated June 13,
2000, entitled "Protective Proceedings: Hospitalizations and Medical Authorizations," there is no
evidence that the procedures outlined in it were in effect in February 1999. In fact, the family
court's comments at the end of the review hearing that "a review of the procedure will take place
and an administrative order will be issued by this Court for future cases" suggests that there were
no specific procedures in place for dealing with this sort of case. Accordingly, we cannot
conclude that a local court rule guided the proceedings in this case, irrespective of whether the
Supreme Court approved it.
XV. "Harmless" Error
There can be little question that the string of errors in this case affected baby Allison's
substantial rights and cast doubt on the fundamental fairness of the proceedings. In another case,
some of the procedural errors, such as referee Schummer's failure to inquire whether Mahinske
was prepared to represent baby Allison, might not require reversal. However, given that each of
these errors contributed to the decision to withdraw baby Allison's life support without
convincing evidence that doing so was in her best interests, the accumulation of errors in this
case cannot, by definition, be considered harmless.
XVI. Conclusion
General Charles de Gaulle's daughter, Anne, was born retarded.208 She was unable to
feed or clothe herself, or speak well.209 De Gaulle was a notoriously aristocratic and aloof man,
but for all his daughter's life he spent hours "playing simple games with her and at night he
207
Schlender v Schlender, 235 Mich App 230, 232-234; 596 NW2d 643 (1999); see also MCR
8.112.
208
Fadiman & Bernard, Bartlett's Book of Anecdotes (Boston: Little, Brown, & Co, 2000), p
160.
209
Id.
-50-
would hold her hand until she fell asleep."210 In 1948, Anne died after she contracted a lung
ailment.211 At his daughter's funeral, de Gaulle turned to his wife and said, "Now at last our child
is just like all children."212
It almost certainly did not occur to Charles de Gaulle that his daughter should be put to
death for her disabilities. We again observe that we can fashion no remedy that will unmake the
decisions that led to baby Allison's death; now she is, in the true meaning of de Gaulle's
heartbreaking phrase, just like all children. Moreover, we do not hold that life support can never
be withheld or removed from a desperately ill and suffering child, although we acknowledge that
linking the removal of life support to the child's best interests is, on the surface, enormously
jarring.
We emphasize, instead, that the judicial branch is almost entirely reactive. Courts
respond only to matters that are brought before them, taking cases as they exist: troubling facts,
imperfect records, and all. This is but one of many reasons why the decision to withdraw lifesustaining medical care from a desperately ill child is one that should rarely involve the courts.
As Rosebush, still a seminal case in Michigan jurisprudence concerning the subject of end-of-life
decisions, aptly put it: "[T]he decision-making process should generally occur in the clinical
setting without resort to the courts, but . . . courts should be available to assist in decision making
when an impasse is reached."213
Here, the family court did not become involved because an impasse existed. Rather, in
the final analysis, the family court became involved because the state, through the FIA,
apparently took it upon itself to assume the mantle of responsibility to act as baby Allison's
surrogate. While asking the family court simply to decide what was in baby Allison's best
interests, the FIA directly pressed for an order authorizing Children's Hospital to remove her life
support. This ran exactly contrary to the warning in Rosebush that judicial involvement in such a
decision is unwarranted other than as a last resort. Notably, this warning extends not merely to
the courts that must, in the most extreme cases, assist in resolving impasses, but also to those,
like the FIA, who bring these cases to the courts' attention.
Moreover, in the accelerating rush to judgment that occurred here, the series of legal
errors and missteps following the preliminary hearing compounded what was already an
excruciatingly difficult and complex situation. The record strongly suggests that no one involved
in the protective proceeding had ever communicated directly with baby Allison's parents and that
only Dr. Delaney-Black had ever seen baby Allison. Thus, a statutory process designed to
protect individual rights, to allow the intelligent exercise of these rights, and to assure balanced
and considered decision making became, instead, the opposite. This indicates such a relentless
210
Id.
211
Id.
212
Id.
213
Rosebush, supra at 683.
-51-
disregard for basic principles that in this opinion we have attempted to assure that this tragedy—
and a tragedy it was, in every sense of the word—is never repeated in our state.
Reversed.
Collins, J., concurred.
/s/ William C. Whitbeck
/s/ Jeffrey G. Collins
McDonald, J., did not participate.
-52-
APPENDIX A
Summary of Holdings
In a protective proceeding, a family court's subject-matter jurisdiction depends solely on
whether the petition alleges facts that fit within MCL 712A.2(b) and are not merely frivolous. A
family court does not lose subject-matter jurisdiction in a protective proceeding solely because a
serious medical decision must be made, including whether to withdraw life support. Neither
CAPTA nor EMTALA specifically prohibits a family court from considering whether to
withdraw life support. Though discrimination in judicial proceedings may give rise to a due
process or equal protection argument that may be asserted on appeal, the ADA and the
PWDCRA may not be used to challenge a family court decision when neither act was at issue in
the family court.
The family court must comply with the notice requirements in MCR 5.920 and MCR
5.921 to establish personal jurisdiction over respondents. As critical as personal jurisdiction is,
the right to notice is personal and cannot be challenged on appeal by anyone other than the
person deprived of notice. Aside from the statutory right to notice, ordinary procedural due
process principles determine whether the family court can hold a hearing without offering notice
and an opportunity to be heard to individuals whose interests are affected.
MCL 712A.18f(4) does not permit the family court to enter a dispositional order of any
sort before it properly finds that the child comes within its jurisdiction pursuant to MCL
712A.2(b). However, if the family court places the child in out-of-home care, MCL 722.124a(1)
permits a family court to order routine, nonsurgical medical care or emergency medical or
surgical treatment even before holding an adjudication on the petition. This statute grants a
family court the authority to enter an order allowing medical personnel to withdraw life support
from a minor child if the medical or surgical care ceases to be treatment. However, the family
court must make every possible effort to respect the policy disfavoring judicial intervention in a
life support decision by holding an adjudication before making that decision.
When considering whether to withdraw life support, the family court must first determine
whether the minor child is of an age and maturity to make her own decision concerning her
treatment. If the child is old enough and mature enough, even though still a minor, she has the
right to refuse treatment as the corollary to the right to give informed consent. If the child is not
competent to make such a decision for herself, the court must consider whether the child was
once competent to make this decision. If the child was once competent and there is clear and
convincing evidence that she had expressed an intent to refuse the treatment at issue under the
circumstances, then the family court must enforce her choice under the substituted-judgment
decisional standard. If the child was never competent or had not expressed any wishes
concerning treatment under the circumstances, the family court must examine what is in the
child's best interests. The family court must have clear and convincing evidence under either the
substituted-judgment or best interests standard in order to withdraw life support.
As the family court is considering the child's competence, it should also determine
whether to appoint a guardian ad litem for the child unless the current statutory scheme provides
otherwise. Though a lawyer appointed to represent the child in proceedings before March 1,
-53-
1999, may have also served as a guardian ad litem, the family court should have considered
whether the circumstances warranted appointing a different individual as the guardian ad litem.
In cases before and after March 1, 1999, if a parent or other surrogate who would
ordinarily make a medical decision for the child is allegedly incompetent, the family court must
have clear and convincing evidence of that person's incompetence before depriving that person of
the opportunity to make the life support decision. There is no presumption of incompetency in
this context. Other good reasons may also exist to justify depriving a parent or other surrogate of
the opportunity to make the life support decision.
If a case calls for a best interests determination, the family court must consider all
relevant factors as outlined in Rosebush. Additionally, the family court may weigh the presence
or absence of medical consensus, the factors that contributed to medical disagreement or
agreement, and the factors that make any independent physician opinion more or less relevant to
the ultimate decision to withdraw life support.
No matter the value of informal practice in the family courts, strict adherence to the
statute and court rules is the only acceptable choice in cases involving withdrawal of life support.
MCL 712A.10 permits a referee to conduct a hearing relevant to a request to withdraw life
support. However, the referee must make written findings and recommendations to submit to a
judge. MCR 5.991 then grants the parties seven days in which to request full judicial review. If
the circumstances in a case require immediate action, then the parties and the family court may
agree to have a judge hear the case immediately, stipulate the facts, or take other steps to
expedite the proceedings. After the review process, or even if there is no request for judicial
review, a judge must make the decision, in fact and not merely in form, and must then personally
sign any order.
Throughout a proceeding under the Juvenile Code, a child has the right to an attorney
who is her zealous advocate. MCR 5.915 and MCL 712A.17c(7), as well as MCL 712A.17d and
MCL 712A.13a(1)(b) for cases after March 1, 1999, impose substantive obligations on the child's
attorney. MCL 722.630, relevant case law, and the rules of professional conduct are also helpful
in defining an attorney's obligations. The court rules disfavor substituting attorneys for a child
when at all possible. However, when it is necessary to provide a temporary substitute for the
child's attorney, the family court plays an important role in ensuring that this attorney is prepared
to render zealous advocacy by engaging in the inquiry prescribed in MCR 5.915(B)(2)(d). Courts
test whether a child was denied the effective assistance of counsel in a case under the system in
place before March 1, 1999, by examining whether the child's attorney's conduct departed from
these substantive obligations and whether that deficient performance led to an outcome that was
not in the child's best interests. If the attorney was ineffective, the reviewing court may order
appropriate relief, including reinstituting protective proceedings if necessary.
-54-
APPENDIX B
Issues in the application for leave to appeal to the Michigan
Supreme Court addressed in this opinion
Issue IV: Where the child was never adjudicated a temporary
ward of the court, she had the standing to raise all the issues before
the court, including those which specifically effected [sic] the
parent(s).
Issue V: The family division of the circuit court did not have
subject-matter or personal jurisdiction to authorize the withdrawal
of life support in a case brought under the Juvenile Code.
Issue VI: Assuming arguendo that the court did have proper
jurisdiction over the parties and the subject matter, the court did
not have the statutory authority to enter a dispositional order
authorizing the withdrawal of life support.
Opinion references
Section VI
Ante at ___.
Section V
Ante at ___.
Sections VII and VIII
Ante at ___.
Issue VII: Regardless of whether the circuit court's family Section XII
division had the authority to act in this case, that authority could Ante at ___.
not have been exercised solely by a referee of the court.
Issue VIII: Regardless of any jurisdictional infirmities the parties
and the court ignored remedies and procedures that were available
under statutes and case law.
Issue IX: The child was denied her statutorily mandated right to
counsel where the referee held a hearing without her courtappointed attorney and instead held a hearing on the withdrawal of
life support with an "emergency house counsel" who did not fulfill
her statutory or legal duties.
Issue X: The referee violated a number of federal and state
statutes directed at the protection of children, seriously ill
individuals, and the disabled where he precipitously ordered the
withdrawal of life support and medication from the child.
Issue XI: Where the primary issues before the court were whether
or not to withdraw life-sustaining medical treatment and whether
the mother was capable of consenting to medical treatment or its
withdrawal, the lack of legally admissible evidence was clear error.
-55-
Section XII
Ante at ___.
Section XIII
Ante at ___.
Sections IX, X, and XI
Ante at ___.
Section XII
Ante at ___.
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.