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Michigan Supreme Court Holds Respondents Can Appeal Issues From All Stages of Child Protective Proceeding After Termination Of Parental Rights

On June 12th, 2019, the Michigan Supreme Court released its opinion in In re Ferranti Minor, ___ Mich ___ (2019)(Docket No. 157907) holding that a respondent-parent can raise issues on appeal from the adjudicative phase of a child protective proceeding even after termination of parental rights. This decision overrules In re Hatcher, 443 Mich 426 (1993) which previously held that raising adjudication errors in an appeal from a termination order was an impermissible "collateral attack" on a separate action.

In 2015, the Department of Health and Human Services (DHHS) removed a minor child from the home of her parents due to medical neglect. The child had spina bifida (a birth defect) and the respondent-parents failed to take her to several medical appointment or to regularly refill her prescriptions. The trial court found probable cause to approve to remove the child from the home. After several hearings, the parents decided they would enter a plea by admitting to being neglectful of their child's medical needs, in exchange for DHHS providing the parents a family treatment plan and make reasonable efforts to reunify the family. The trial court did not advise the parents of the rights they were waiving or advise of the consequences for taking a plea. Eventually, the parents failed to rectify the conditions leading to removal and the judge terminated their parental rights.

The Michigan Court of Appeals affirmed the termination of parental rights. The appellate judges relied on the precedent in Hatcher that generally barred a parent from raising errors in the adjudicative phase of a child protective proceeding. The Hatcher court determined that child protective proceedings happened in two distinct phases:

  • Adjudication: DHHS undertakes an emergency removal of the child from the parental home and the court authorizes a petition for jurisdiction. The trial court assumes jurisdiction over the family either after a trial or a plea, on the grounds that the child was subjected to abuse or neglect by a preponderance of the evidence. Taking jurisdiction empowers the judge to make decisions for the child while in the care of DHHS
  • Disposition: The parents are ordered to complete a list of items on a family treatment plan to works towards reunification with the child. If the parents fail to complete the case service plan within a reasonable amount of time (or DHHS is otherwise not required to make reasonable efforts to reunify the family by statute), then the trial court may terminate parental rights if it finds a statutory ground to do so by clear and convincing evidence and finds that termination of parental rights is in the child's best interests.

Even though the court failed to advise the parents of the consequences of their plea, the Michigan Court of Appeals determined that they waived their right to appeal the adjudicative phase of the trial by waiting until the end of the disposition phase to do so. Since child protective proceedings have two distinct phases, the collateral-bar rule prevents the respondents from raising the adjudication issues against a disposition proceeding. Therefore, the termination of parental rights was upheld. The parents subsequently appealed to the Michigan Supreme Court.

The majority of justices determined that Hatcher was wrongfully decided because child protective proceedings are one continuous action, not two separate actions. As a result, the collateral-bar rule does not apply within one child protective case. After termination of parental rights, all issues from removal to the final hearing are ripe for appeal. In this case, the termination of parental rights was improper because the parents were not adequately informed of their rights at the time that their pleas were taken. Pursuant to MCR 3.971(B), "[b]efore accepting a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file:"

  • (1) Of the allegations in the petition;
  • (2) Of the right to an attorney, if respondent is without an attorney;
  • (3) That, if the court accepts the plea, the respondent will give up the rights to trial by a judge or trial by a jury, to have the petitioner prove the allegations in the petition by a preponderance of the evidence, to have witnesses against the respondent appear and testify under oath at the trial, to cross-examine witnesses, and to have the court subpoena any witnesses the respondent believes could give testimony in the respondent's favor;
  • (4) Of the consequences of the plea, including that the plea can later be used as evidence in a proceeding to terminate parental rights if the respondent is a parent.
  • (5) If parental rights are subsequently terminated, the obligation to support the child will continue until a court of competent jurisdiction modifies or terminates the obligation, an order of adoption is entered, or the child is emancipated by operation of law. Failure to provide required notice under this subsection does not affect the obligation imposed by law or otherwise establish a remedy or cause of action on behalf of the parent;
  • (6) That appellate review is available to challenge a court's initial order of disposition following adjudication, and such a challenge can include any issues leading to the disposition, including any errors in the adjudicatory process; and
  • (7) That an indigent respondent is entitled to appointment of an attorney to represent the respondent on appeal of the initial dispositional order and to preparation of relevant transcripts;

The trial court's failure to advise the parents of their rights caused an error that seriously affected the fairness and integrity of the proceedings. The right of a parent to direct the custody, care and control of their children is a fundamental right. As a result, any plea that waives a fundamental right must be voluntary and knowing. When a court fails to inform the respondent of his or her rights, then there is no way that the plea can be "knowing". Therefore, the defective adjudication phase causes the subsequent termination of parental rights to be null and void.

This decision has the immediate effect on all pending child protective proceedings that the removal and adjudication phases are subject to review by the appellate courts if parental rights are terminated. It remains to be seen if a future Michigan Supreme Court will cause this decision to have a retroactive effect (e.g. whether or not cases decided under a Hatcher standard would be revisited). This appears unlikely since a review of previous termination cases can have the devastating effect of undoing any kind of adoption proceedings that have taken place to provide permanency for the child. But, for now, any parent in a pending child protective proceeding that may suffer a termination of parental rights can now raise any and all issues from the entire case to ensure that he or she receives the fairest appellate review possible.

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