IN RE MAKYLA WILLIAMS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MAKYLA WILLIAMS, Minor.
DEPARTMENT OF HUMAN SERVICES,
FOR PUBLICATION
November 24, 2009
9:10 a.m.
Petitioner-Appellee,
v
No. 289260
Berrien Circuit Court
Family Division
LC No. 2008-000027-NA
MICHAEL WILLIAMS, SR., and
LASHAWNDA MASJAY WRIGHT,
Respondents-Appellants.
Advance Sheets Version
Before: OWENS, P.J., and SERVITTO and GLEICHER, JJ.
PER CURIAM.
Respondents appeal as of right a circuit court order terminating their parental rights. We
affirm regarding Lashawnda M. Wright, respondent mother, reverse with respect to Michael
Williams, Sr., respondent father, and remand for further proceedings concerning respondent
father. We have decided this case without oral argument pursuant to MCR 7.214(E).
I. Factual and Procedural History
Respondents are the parents of Makyla Williams, who was born on December 7, 2007.1
At the time of Makyla’s birth, respondent mother resided in Odyssey House, a residential
substance abuse treatment center in Flint. Respondent mother withdrew from Odyssey House on
February 1, 2008, before completing her treatment. She returned to Berrien County with twomonth-old Makyla, and enrolled in an intensive outpatient treatment program at the Community
Healing Center. For approximately six weeks, respondent mother complied with the
requirements imposed by the intensive outpatient program.
1
Respondents are also the parents of Michael Williams, Jr., born January 18, 2007. The circuit
court terminated respondents’ parental rights to Michael in October 2008, and this Court
affirmed. In re Williams, unpublished opinion per curiam of the Court of Appeals, issued April
28, 2009 (Docket Nos. 288260, 288304).
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In March 2008, Children’s Protective Services (CPS) received information that
respondent mother had prematurely ceased her outpatient substance abuse treatment and renewed
her habitual use of crack cocaine and marijuana. On March 13, 2008, petitioner, Department of
Human Services (DHS), filed a petition seeking temporary custody of Makyla. The petition
contained no substantive allegations about respondent father.2 A circuit court referee authorized
the petition and ordered Makyla placed in foster care. The parties have not provided this Court
with the transcript of the March 13, 2008, preliminary hearing, and it is uncertain whether
respondent father attended. The circuit court record reflects that respondent mother appeared
and requested appointed counsel, and that the court appointed counsel for her.
Petitioner filed an amended petition on March 24, 2008, containing greater detail
regarding respondent mother’s substance abuse history. The amended petition recited that
respondent father “is the legal father of Makyla,” but contained no allegations that respondent
father had neglected or abused Makyla or lacked the capacity to care for her.
On May 7, 2008, a circuit court referee conducted a bench adjudication trial. Respondent
mother did not attend the trial, but was represented by counsel. The referee preliminarily
observed with respect to respondent father, “Mr. Williams, you are here without counsel. It’s my
understanding that you’re going to represent yourself?” Respondent father replied affirmatively,
and the following colloquy ensued:
The Referee: Okay. And you understand that you have the right to do
that?
Respondent Father: Yes.
The Referee: And you also understand that the same rules and regulations
apply whether you have counsel or not? So you still have to comply with the
same laws and rules. You understand that, sir?
Respondent Father: Yes.
The Referee: All right. And we’ll go ahead and proceed because notice is
proper.
The prosecutor called respondent father as her first witness. Respondent father testified
that he lived with his mother, received social security disability income for a disease that he
described as “a spot on my lung,” and earned additional income doing “odds and ends.”
Respondent father agreed that respondent mother had a “very unstable” lifestyle and lacked
2
The petition’s sole reference to respondent father averred:
An attempt was made to conduct a home visit on 3/12/08. The Petitioner
spoke with Cecil Davis, Lashanda’s [sic] grandfather who stated that Lashanda
[sic] and the baby had just left with Michael Williams. The Petitioner left a card
with Mr. Davis and requested he have Lashanda [sic] call.
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housing and a source of income. In response to questions posed by the referee, respondent father
explained that he spent time with Makyla every day, fed her, and changed her diapers.
Respondent father volunteered that he had given respondent mother money to prevent her from
“end[ing] up in the streets.”
A supervisor and therapist at the Community Healing Center testified that respondent
mother continued to abuse crack cocaine, marijuana, and alcohol, and failed to successfully
complete the intensive outpatient treatment program. Amanda Forrester, Makyla’s foster care
worker, recounted that in March 2008 respondent mother had admitted regularly using cocaine
and marijuana, and Forrester stated that services had been offered to respondent mother. Neither
respondent presented any evidence.
The prosecutor requested that the court find “that there’s a preponderance of evidence
that the mother has neglected the child and the child’s at risk in her care, and that the father’s not
in a position to be able to provide for the child on his own.” Respondent father argued:
Your honor, I haven’t—my condition and whatever is wrong with me,
there’s a lot of people a lot sicker than me that have custody of their children like
this. And I take care of little June, I take care of little Mike, and I take care of her
too. I stay up, I watch her, change their diapers, feed them three or four, five
o’clock in the morning. . . .
And my physical problem does not prevent me from not taking—from not
taking care of them. I take care of them. I feed them. I buy them [P]ampers. I
buy whatever they need, milk and everything. I support them.
The referee determined that Makyla came within the court’s jurisdiction, finding that
“transferring this child back to the home of either parent would be inappropriate and would
potentially cause more harm than any good that can come of it.” After the referee announced his
ruling, respondent father objected, “I don’t see why I can’t have temporary custody of them
because I don’t smoke drugs, I do not do drugs. I’m at home with them.”
The referee proceeded to conduct a dispositional hearing. Forrester recommended that
Makyla remain in placement with respondent father’s sister, and responded as follows to
questions posed by the prosecutor:
Q. And this is Mr. Williams Senior’s sister?
A. Yes.
Q. That gives him pretty good access to his child?
A. Yes. It does. Michael Senior’s mother provides daycare for the child
during the time and she lives in the same home as Michael, Senior. So he does
have that—liberal access to the child.
Q. And in terms of Mr. Williams, he’s a pretty nice guy?
A. Yes. He is.
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Q.
involved?
He’s been very consistent in caring for his children and being
A. Yes.
Q. He wants to be involved with his children’s lives?
A. Yes.
Q. And he actually visits and spends as much time as possible with them.
Is that correct?
A. As far as I know. Yes.
Forrester then described that “about a year ago” she received a “form” from respondent
father’s physician “basically stating that Mr. Williams needs help with shopping, laundry, meal
preparation, some basic chores.” At the bottom of the form, Forrester had inquired of the
physician, “Does this patient’s medical condition keep him from being able to parent/raise a 4month old child until he is an adult?” The physician wrote, “Yes,” and underlined it. Forrester
advised that respondent father willingly signed two additional medical releases, but despite her
efforts the physician had yet to supply her with additional information. Forrester asserted that
she wanted the physician to elaborate and admitted that she saw no reason why respondent father
could not provide care “with the assistance of his family members[.]” According to Forrester,
petitioner had neither offered nor provided any services to respondent father, apart from a
parenting class that respondent father successfully completed in the course of the child protective
proceeding regarding Michael, Jr. Forrester recommended only that respondent father maintain
contact with Makyla. Regarding respondent mother, Forrester recommended substance abuse
treatment followed by individual counseling, a parenting class, and weekly parenting time.
The prosecutor sought clarification of Forrester’s recommendations by inquiring, “So
you’re not—your goal isn’t to keep the children from Mr. Williams?” Forrester responded, “No.
It’s not.” The referee addressed respondent father and highlighted that “the prosecutor and the
Department of Human Services, everybody thinks that you’re a pretty good dad.” The referee
then advised respondent father that “we want to get a handle on” any health restrictions, and that
he should stop “enabling” respondent mother by giving her money. Respondent father agreed to
cooperate with petitioner. The circuit court’s order of May 9, 2008, afforded respondent father
“liberal and frequent” parenting time “supervised by the Department of Human Services and/or
its designee.”
On July 30, 2008, the referee conducted a dispositional review hearing. The prosecutor
noted that a termination petition had been requested “in the companion file” involving Michael,
Jr.3 The lawyer-guardian ad litem reviewed that respondent mother had missed “a significant
3
The record provided to this Court does not include of copy of the petition regarding Michael,
Jr., and we are unable to determine whether the initial petition in Michael’s case sought
termination of respondent father’s parental rights.
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number of drug screens,” and “needs a lot of services” that she had failed to initiate. Neither the
prosecutor nor the lawyer-guardian ad litem voiced any concerns about respondent father. The
referee then noted that respondent father had “pulmonary sarcosis [sarcoidosis].” In response to
the referee’s questions, respondent father explained that he took medication and received
treatment for this condition, which had remained “the same” since its original diagnosis in 1987
or 1989. The referee then spoke at length with respondent mother, and warned her that if she
continued to use drugs she would lose her children. The referee opined:
It is not appropriate to return the child to the home at this point because
I’m not sure what issues the child would face based on the substance abuse.
Dad’s got some medical problems himself, which gives [sic] him some
problems as far as becoming the custodial parent. But doesn’t mean they don’t
need a father. You’re going to continue to be the father, Mr. Williams, right?
Respondent Father: Yes, sir.
None of the hearing participants further elaborated any concerns regarding respondent father’s
lung disease. But the order entered after the hearing noted concerning “likely harm to the child if
the child was returned to his or her parent(s),” “Father has medical issues which prevent him
from taking control of the child.”
On October 6, 2008, the referee authorized petitioner to file a supplemental petition
seeking permanent custody of Makyla. With regard to respondent father, the supplemental
petition alleged as follows:
Mr. Williams cannot parent one child, let alone two small children, by
himself, due to health issues. He may have a kind heart but he is susceptible to
the lure of his relationship with LaShawnda and has not demonstrated that he has
the strength to resist what she wants even when that is not what is best for his
children or for LaShawnda. He gave her money ostensibly to prevent her from
stealing or engaging in prostitution to get money for drugs. He allowed her to live
in his car in his driveway instead of using that as an opportunity to go into a
program by asking the worker for help. His greatest mistake was in providing
Ms. Wright a means to leave her residential treatment program before she had
completed it successfully and received all of the benefit that she needed to prepare
herself for the next step in her recovery. There is no reason to believe he would
be strong enough to resist her in the future.
On October 22, 2008, the circuit court referee conducted a permanency planning hearing
regarding Makyla. The prosecutor initiated the following colloquy:
The Prosecutor: Did you first want to review with Mr. Williams, even
though I know he knows this, his right to have an attorney before we proceed?
The Referee: Mr. Williams, I take it you have not hired counsel?
Respondent Father: No. Not at the moment, your Honor.
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The Referee: Okay. And you understand that you have a right to hire
counsel if you wish?
Respondent Father: Yes.
The Referee: And you’re willing to proceed without counsel today?
Respondent Father: Yes.
The Referee: Okay.
Foster care worker Kanita Roseburgh testified that petitioner had pursued reasonable
efforts to reunify Makyla with her parents. Roseburgh related that respondent mother had
entered a residential drug treatment program, and respondent father “lives with his parents and
does have a medical condition, which prohibits him from caring for his child.” According to
Roseburgh, both respondents had failed to complete offered services or otherwise substantially
comply with the terms and conditions of their case service plans.4 Respondent mother testified
by telephone, describing her current substance abuse treatment efforts and her commitment to
remaining substance free. Respondent father offered the following statement on his own behalf:
Respondent Father: They terminated my rights to my son and now they’re
trying to terminate my rights for my daughter. And I did everything this court
asked of me to do. And I take care of them kids. I buy them stuff, whatever they
need. I take their stuff right up—whatever they need I take right off the top
before I do anything. And they’re terminating my rights because I’m looking for
LaShawnda to get better. And that’s not right for them to terminate my rights for
my son or my daughter.
The Referee: Is that . . .
Respondent Father: And I’m not—
The Referee: —your statement, Mr. Williams?
Respondent Father: Yeah. I’m not going to let this go neither because the
prosecuting attorney—I mean, they was wrong. They didn’t—they asking if I
have never had no home. I never had no place to have my home because I always
took care of other folk kids a long term relationship.
The Referee: You understand, Mr. Williams, that this hearing today isn’t
going to terminate anything?
Respondent Father: Right. Yes.
4
As discussed later in this opinion, no evidence exists that respondent father failed to comply
with a case service plan or failed to complete offered services.
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The Referee: We’re not going to—we’re not going to do that today.
Respondent Father: Right.
The Referee: We’re only going to determine what we’re going to do
between now and the 12th of November.
Respondent Father: Yes, your Honor.
The Referee: Okay. And you understand the 12th of November, that’s the
hearing that –
Respondent Father: Yeah.
The Referee: —will decide whether or not anybody’s rights are going to
be terminated.
Respondent Father: Yes, your Honor.
The referee announced that although he continued to support his prior authorization of the
supplemental permanent custody petition, “at this point I’m not changing the [reunification] plan
until I hear the testimony and the evidence on the termination.”
The termination hearing occurred on November 12, 2008, and respondent father almost
immediately requested counsel. The following discussion ensued:
The Referee: Mr. Williams, any comment you wish to make?
Respondent Father: I want to know if I can ask the court for a court
appointed lawyer on this.
The Referee: A court appointed lawyer?
Respondent Father: Yes.
The Referee: I don’t believe you’re entitled to a court appointed lawyer in
this case.
Well, wait a minute. You are a respondent.
Lawyer-Guardian ad Litem: I don’t believe he’s been screened, your
Honor. We . . . we’ve told him in the other case and he’s never had an attorney at
any hearing. He’s constantly reminded to be screened if he wants court appointed
attorneys. He would have been told at every one of these hearings.
The Referee: I thought we—yeah. We discussed that I thought back in
October.
But the question is, is he entitled to a court appointed lawyer?
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Lawyer-Guardian ad Litem: We won’t know that until he’s screened.
Respondent Father: I got screened for—I did one for Michael Junior.
The Referee: Did you get a court appointed lawyer?
Respondent Father: I guess for this pretrial.
The Referee: What about the termination hearing?
Respondent Father: That’s what I meant.
The Referee: Pardon?
Respondent Father: Yes.
The Referee: Does 2008—
Prosecutor: Your Honor—
The Referee: —0020 indicate that there was a court appointed lawyer for
Mr. Williams?
Prosecutor: Your Honor, I’m just looking back at 2007-0020 and the
notes that I have from [prosecutor] Ms. Penninger at each of the hearings, I don’t
know about the orders, but the note I have from the prelim back in 2007 was over
income, waived an attorney for today. I have nothing in here otherwise, other
than waives attorney in a few different spots.
I think . . . at the termination hearing I have a note that Mr. Williams
waived attorney. And that was a prior case.
In this file, your Honor, I have the same notes in here of the prelim it looks
like, that he waived attorney. I have nothing about a court appointed attorney
being in here anywhere.
The Referee: Well, one of the—
Lawyer-Guardian ad Litem: He is the legal father.
The Referee: —statements in the petition is that Mr. Williams doesn’t
have any income.
Lawyer-Guardian ad Litem: Well, but he does. He’s testified in previous
hearings not only does he get disability payments, but he does odd jobs on the
side. Because that was one of the allegations, was that he was giving money and
enabling Ms. Wright. But whether or not that puts him over income, I don’t know
what those standards are. He’d have to be screened.
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Prosecutor: Your Honor, this case has been going on for almost nine
months, the prior case was going on for over a year. I think that he’s been
adequately advised every hearing that he needs—what he would need to do. I
haven’t been present for those hearings. It’s not my file. But I would assume
from the notes and from what [Lawyer-Guardian ad Litem] Ms. Long has
indicated that he has had ample opportunity to obtain counsel. And he’s already
been through a termination hearing so he knew what he was going into facing
today.
Lawyer-Guardian ad Litem: That doesn’t change the fact that he’s a legal
father, he’s a respondent, and he should at least be screened, which he can do over
the phone.
Respondent mother’s attorney: And on behalf of our office, your Honor,
if he was screened on previous case, that doesn’t necessarily mean that that would
transfer over to this one. He would need to be rescreened on this one. And as
Ms. Long indicated, that could be done over the phone in just a few minutes if we
wanted to [sic] off the record to facilitate that.
The Referee: Well, again, I definitely think so because he is a respondentfather. And while I agree that, you know, it’s a little late in the day, he still has a
right to do it.
So we will go off the record.
Prosecutor: I think we should call mom back, tell her—
The Referee: Yeah. I think what we’re going to do, Ms. Wright, we’re
going to disconnect the phone in a few minutes for Mr. Williams to contact legal
services to screened [sic] whether or not he’s eligible for a court appointed
lawyer.
***
And then what we’ll do is we’ll call you back, probably in about 20
minutes to 25 minutes.
***
Or sooner, depends on how long the screening takes. It shouldn’t take
much longer than that though.
***
The Referee: Okay. We’re back on the record in file 2008-0027-NA-N.
We took a recess to determine whether or not Mr. Williams would be eligible for
court appointed counsel.
Ms. Hadanek, what was [sic] the results of that?
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Respondent mother’s attorney: Your Honor, Mr. Williams was put
through to our office by telephone. He was screened. Because he’s been living
with his parents since 2003 we included all household include [sic]. And he was
over income at 133 percent.
The Referee: So he would not be eligible for court appointed lawyer?
Respondent mother’s attorney: That’s correct, your Honor.
The Referee: All right.
Mr. Williams, determination from the screening process is that you would
not be entitled to court appointed lawyer. You would still be entitled if you
wished to hire a lawyer, you could have done that. But you had ample
opportunity in this case to do so. The record is replete with all kinds of
indications to you that you had a right to do that. You waived that right. So now
on the day of trial we’re not going to—we’re not going to adjourn it to do so. So
you’re going to be representing yourself.
All right. So we will go ahead and proceed.
Malinda Bush, respondent mother’s drug rehabilitation counselor, testified that
respondent mother had been “in and out of treatment, engaging then disengaging, engaging then
disengaging,” since 2004. Bush opined that although respondent mother was doing well in her
current residential treatment setting, she could not safely parent a child outside the inpatient
environment.
Forrester testified that she had worked on Makyla’s case until July 2008, and that she
reviewed the services that petitioner had offered to both respondents since Michael, Jr., was
placed in foster care in October 2007. Forrester described that respondent mother had made no
progress regarding her emotional stability, neglected to participate in parenting classes, lacked
housing and employment, and failed to meaningfully participate in substance abuse treatment.
Forrester related that respondent father had participated in parenting and psychological
assessments, completed a parenting class in January 2008, and regularly attended his parenting
times. She explained that respondent father’s medical condition “[i]nitially wasn’t much of a
concern” because she lacked information regarding the condition. Forrester continued,
“However, when I received some more information from his doctor then it did become a
concern.” Forrester conceded that she based her conclusion regarding respondent father’s health
on the “form” respondent father’s doctor had completed in 2007, which she previously submitted
to the court.5 Forrester offered that although respondent father “cares about his children,” he
neglected to provide medical documentation “stating that he’s able to raise them,” and “he’s also
not able to show that he has housing. So he’s not able to provide for them financially.”
5
Our careful review of the record reveals that Forrester never actually received any “more
information” from respondent father’s physician than the one-page form, whose contents she
described at the adjudication trial.
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According to Forrester, “[t]hose are still concerns today.” Forrester acknowledged that she had
no recent information with respect to whether respondent father continued to “enable”
respondent mother.
Roseburgh, the foster care specialist who assumed Forrester’s duties in August 2008,
testified concerning respondent father that she had requested only “adequate documentation from
his doctor regarding his health,” which he failed to provide. She conceded that respondent
father’s parents provided for his household needs. Roseburgh opined that respondent father
could not safely care for Makyla “because we don’t have adequate documentation from [his
doctor] that says that it’s okay for him to do that. So that’s the big issue at this point.”
Roseburgh echoed Forrester’s concerns that respondent father lacked “independent housing,”
and agreed that his income would not suffice “to help him in raising a child.” With regard to
respondent mother, Roseburgh expressed the same concerns as had Forrester, opining that
respondent mother had made no progress in any areas of concern and lacked a relationship with
Makyla.
Respondent mother testified that she continued to achieve significant gains in her
therapeutic setting, and felt strongly that she could remain abstinent from alcohol and drugs and
safely parent Makyla after her release from residential treatment. Respondent father testified in
narrative fashion, objecting to the loss of his parental rights. He insisted that he routinely
washed, fed, and dressed his children, and felt capable of taking care of them.
The referee began his bench opinion with the following summary:
This case really does present a dilemma to me, to be honest with you.
There are many, many reasons that it almost seems like a no brainer to terminate
the rights of the parents. And then on the other side it seems to me that dad has
been, you know, doing what he needs to be doing as far [as] he’s concerned. I
agree that sometimes I don’t think he quite understands some of the difficulties.
But that’s not his fault. He didn’t ask to have that pulmonary scardosis [sic], or
however you pronounce it.
The referee found termination of respondent mother’s parental rights to Makyla warranted
pursuant to MCL 712A.19b(3)(c)(i)[the conditions leading to the adjudication continue to exist
with no reasonable likelihood of rectification within a reasonable time given the child’s age],
(c)(ii) [the parent received recommendations to rectify other conditions and had a reasonable
opportunity to do so, but failed to rectify the other conditions], (g) [irrespective of intent, the
parent fails to provide proper care and custody and no reasonable likelihood exists that she might
do so within a reasonable time given the child’s age], and (i) [the parent had rights to a sibling of
the child terminated due to serious and chronic neglect or physical or sexual abuse, and prior
rehabilitation efforts have failed]. The referee invoked only subsection (g) as a ground for
terminating respondent father’s parental rights. The referee lastly found that termination of
respondents’ parental rights would serve Makyla’s best interests because she apparently would
have a permanent placement with a paternal aunt, an arrangement that would afford respondent
father and respondent mother, if she remained sober, ongoing access to Makyla.
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The circuit court adopted the referee’s findings and conclusions in an order entered on
November 13, 2008. Both respondents timely sought appointed appellate counsel. The circuit
court appointed the same appellate lawyer for both respondents, who now appeal as of right.
II. Issues Presented and Analysis
A. Standard of Review
We review for clear error a circuit court’s decision to terminate parental rights. MCR
3.977(J). The clear error standard controls our review of “both the court’s decision that a ground
for termination has been proven by clear and convincing evidence and, where appropriate, the
court’s decision regarding the child’s best interest.” In re Trejo Minors, 462 Mich 341, 356-357;
612 NW2d 407 (2000). A decision qualifies as clearly erroneous when, “although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been made.” In re JK, 468 Mich 202, 209-210; 661 NW2d 216
(2003). Clear error signifies a decision that strikes us as more than just maybe or probably
wrong. In re Trejo, 462 Mich at 356. Whether a child protective proceeding complied with a
respondent’s right to due process presents a question of constitutional law that we review de
novo. In re Rood, 483 Mich 73, 91; 763 NW2d 587 (2009).
The proof supporting a court’s termination decision must qualify at least as clear and
convincing. Santosky v Kramer, 455 US 745, 768-770; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
The clear and convincing evidence standard is “the most demanding standard applied in civil
cases[.]” In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). Our Supreme Court has
described clear and convincing evidence as proof that
produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established, evidence so clear, direct and weighty
and convincing as to enable [the factfinder] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [Id. (quotation marks and
citations omitted; alteration in original).]
B. Respondent Mother
Respondent mother contends that insufficient evidence supported the termination of her
parental rights on any statutory ground. We find that clear and convincing evidence warrants
termination of respondent mother’s parental rights on the basis of MCL 712A.19b(3)(c)(i) and
(g). The conditions that led to Makyla’s adjudication as a temporary court ward involved
respondent mother’s longstanding drug addiction, persistent inability to complete a drug
treatment program, and lack of housing and employment. Although respondent mother
embarked on a commendable effort to treat her addiction several months before the termination
hearing, the totality of the evidence amply supports that she had not accomplished any
meaningful change in the conditions existing by the time of the adjudication.
Furthermore, we detect no reasonable likelihood that respondent mother’s lengthy
struggle with drug addiction and her lack of employment and housing “will be rectified within a
reasonable time considering the child’s age.” MCL 712A.19b(3)(c)(i). Although respondent
mother appeared to be doing well in her residential program at the time of the termination
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hearing, our review of the testimony reveals that she would require a lengthy period of
assessment, counseling, and supervision before reunification with her child could be considered.
No reasonable expectation exists that respondent mother could provide proper care or custody
for Makyla before the child’s second birthday. The circuit court correctly determined that the
two years Makyla already had spent in foster care, her entire life, constituted too long a period to
await the mere possibility of a radical change in respondent mother’s life. The evidence detailed
above also clearly and convincingly supports the circuit court’s reliance on MCL 712A.19b(3)(g)
as an alternate ground for terminating her parental rights.
The record does not substantiate the existence of any additional conditions causing the
child to come within the court’s jurisdiction, as required to terminate parental rights pursuant to
MCL 712A.19b(3)(c)(ii). But because the evidence amply supports termination under two
alternate statutory subsections, the court’s invocation of subsection (c)(ii) qualifies as harmless
error. In re Powers Minors, 244 Mich App 111, 118; 624 NW2d 472 (2000).
C. Respondent Father
Respondent father’s appointed appellate counsel challenges only the sufficiency of the
evidence supporting termination of his parental rights. Appellate counsel failed to raise any
issue regarding his client’s lack of counsel during the termination hearing, or at any point after
petitioner manifested its intent to terminate respondent father’s parental rights.
Only rarely will this Court consider and decide an issue not raised by the parties. Here,
however, we are confronted with a circuit court order permanently severing respondent father’s
fundamental right to the care and custody of his child, entered after proceedings conducted
without the assistance of counsel. Because we cannot ignore a process that casts serious doubt
on the integrity of the proceedings and would risk substantial injustice if allowed to stand
unexamined, we turn to a detailed consideration of respondent father’s right to counsel and
related issues. LME v ARS, 261 Mich App 273, 287; 680 NW2d 902 (2004). Furthermore,
“appellate courts will consider claims of constitutional error for the first time on appeal when the
alleged error could have been decisive of the outcome.” People v Grant, 445 Mich 535, 547;
520 NW2d 123 (1994). An unpreserved claim of constitutional error is reviewed for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999).
1. Respondent Father’s Right to Counsel
The underpinnings of a respondent’s right to counsel in parental rights termination
proceedings are statutory and constitutional. In MCL 712A.17c(4), our Legislature has
mandated that in child protective proceedings,
the court shall advise the respondent at the respondent’s first court appearance of
all of the following:
(a)
The right to an attorney at each stage of the proceeding.
(b)
The right to a court-appointed attorney if the respondent is
financially unable to employ an attorney.
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(c)
If the respondent is not represented by an attorney, the right to
request and receive a court-appointed attorney at a later proceeding. [Emphasis
added.]
The Legislature also specifically addressed a respondent’s indigence in a separate subsection of
the same statute: “If it appears to the court in a proceeding under section 2(b) or (c) of this
chapter that the respondent wants an attorney and is financially unable to retain an attorney, the
court shall appoint an attorney to represent the respondent.” MCL 712A.17c(5) (emphasis
added).
In MCR 3.915(B)(1), our Supreme Court delineated the procedures that must be
employed in child protective proceedings to implement the statutory right to appointed counsel.
The court rule provides:
(a)
At respondent’s first court appearance, the court shall advise the
respondent of the right to retain an attorney to represent the respondent at any
hearing conducted pursuant to these rules and that
(i)
the respondent has the right to a court appointed attorney if the
respondent is financially unable to retain and attorney, and,
(ii)
if the respondent is not represented by an attorney, the respondent
may request a court-appointed attorney at any later hearing.
(b)
The court shall appoint an attorney to represent the respondent at
any hearing conducted pursuant to these rules if
(i)
the respondent requests appointment of an attorney, and
(ii)
it appears to the court, following an examination of the record,
through written financial statements, or otherwise, that the respondent is
financially unable to retain an attorney.
This Court has explicitly recognized that the United States Constitution guarantees a right to
counsel in parental rights termination cases. In In re Powers, 244 Mich App at 121, this Court
explained: “The constitutional concepts of due process and equal protection also grant
respondents in termination proceedings the right to counsel.” This Court has also explicitly
recognized that the constitutional right of due process confers on indigent parents the right to
appointed counsel at hearings that may involve the termination of their parental rights. In re
Cobb, 130 Mich App 598, 600; 344 NW2d 12 (1983).
We now consider when these legislative and judicial mandates designed to safeguard an
indigent respondent’s right to appointed counsel attached to respondent father. Both MCL
712A.17c(4) and MCR 3.915(B)(1)(b) specifically extend the right of appointed counsel only to
indigent “respondent[s]” in child protective proceedings. The initial petition contained no
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allegations of wrongdoing against respondent father, and expressed no concerns about his ability
to parent Makyla. Consequently, at the preliminary hearing, the adjudication, and the
dispositional hearing, respondent father did not qualify as a “respondent.”6 Although the foster
care workers voiced some concerns involving respondent father’s medical condition, at no point
until petitioner filed the supplemental petition did it directly identify an act or omission that
converted respondent father’s status from that of a nonoffending parent into that of a respondent.
Under the applicable statute and court rule, respondent father thus enjoyed no right to appointed
counsel during the first four months of the proceedings. However, when the circuit court
authorized the supplemental petition on October 6, 2008, it was required to advise respondent
father of his right to appointed counsel.
At the termination hearing, respondent father unequivocally requested the appointment of
counsel. The record reflects that the referee utilized a screening process to determine that
respondent father did not qualify for appointed counsel. The screening procedure imputed to
respondent father all the income of his household, including that earned by his parents. We
reject the idea that a court may deny a respondent appointed counsel by imputing to the
respondent income earned by people who bear no legal responsibility to contribute to the
respondent’s legal expenses. Mere cohabitants, even if parents of an adult respondent, possess
no obligation to pay the respondent’s attorney fees, and a court may not prohibit a respondent
from exercising the right to appointed counsel on the basis of a calculation that imputes income
from sources unavailable to the respondent. Because respondent father’s parents had no legal
obligation to pay for an attorney for their adult son, their assets simply had no relevance to a
determination of respondent father’s indigence.7 Furthermore, petitioner contended at the
termination hearing that respondent father’s lack of “independent housing” and his insufficient
income supplied grounds for terminating his rights. We find it fundamentally unfair to deny
appointed counsel because a respondent does not qualify as indigent, while at the same time
invoking the respondent’s indigence as a ground for terminating parental rights. And we note
that the circuit court apparently had no difficulty in appointing counsel for respondent father’s
appeal. Under the circumstances presented here, the referee erred by rejecting respondent
father’s request for appointed counsel at the termination hearing because the court improperly
imputed to respondent income earned by others.
An erroneous deprivation of appointed counsel for child protective proceedings can be
subject to a harmless error analysis. In re Hall, 188 Mich App 217, 222-223; 469 NW2d 56
(1991). But we do not view as harmless in this case the referee’s failure to inform respondent
father at the permanency planning hearing about his right to counsel, or the referee’s refusal to
6
The court rules define the term “respondent” as “the parent, guardian, legal custodian, or
nonparent adult who is alleged to have committed an offense against a child.” MCR
3.903(C)(10). The term “offense against a child” is defined as “an act or omission by a parent,
guardian, nonparent adult, or legal custodian asserted as grounds for bringing the child within the
jurisdiction of the court pursuant to the Juvenile Code.” MCR 3.903(C)(7).
7
MCR 6.005(B) sets forth the factors that must guide a court’s determination of a criminal
defendant’s indigency. Those factors do not mention income earned by others.
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appoint counsel at the termination hearing.8 Because these plain errors affected the fundamental
fairness of the proceedings, we conclude that the absence of counsel does not qualify as
harmless. Carines, 460 Mich at 763-764, 774 (here the erroneous deprivation of counsel
seriously affected the fairness and integrity of the judicial proceedings).
III. Summary
The circuit court correctly terminated respondent mother’s parental rights for the reasons
described in this opinion. However, at the permanency planning hearing, the referee plainly
erred by failing to advise respondent father of his right to appointed counsel, and compounded
this error by refusing to appoint counsel at the termination hearing. These plain errors affected
respondent father’s substantial rights. The continuous and ongoing nature of the referee’s errors
concerning respondent father’s right to appointed counsel affected “the fairness, integrity, or
public reputation” of these proceedings. Id. at 774. Accordingly, we reverse the part of the
order terminating respondent father’s parental rights and remand for further proceedings
consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
8
The referee conducted these two hearings after petitioner filed the permanent custody petition
identifying respondent father as a respondent, thus triggering his right to appointed counsel under
MCR 3.915(B)(1).
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