Disincentive for Personal Injury Attorneys to Handle their own Appeals

The Court of Appeals prohibited a trial attorney from recovering additional fees for his work in the appeal to the Court of Appeals in Reed v Breton. In that case, the trial attorney had a one-third contingency fee agreement with the plaintiff, but the agreement excluded any appeals. When the trial attorney sought the contingency fee plus the hourly fee for the appeal, the trial court said no because the total fee recovered was more than one-third of the plaintiff's net recovery. The COA relied on MCR 8.121, which sets a maximum attorney fees in personal injury and wrongful death actions. Even though the trial attorney entered in a separate hourly fee agreement for his client's appeal, the Court said that, under MCR 8.121, the trial attorney could not recover the additional sum for the work on the appeal. Interestingly, the Court did not apply this rule to another law firm who had worked on the Supreme Court phase of the appeal because those attorneys only worked under an hourly fee agreement and payment for their work was not at all contingent upon the result in the underlying case. Because this decision creates a disincentive for trial attorneys to work on their own appeals, it may turn out to be a boon for appellate attorneys.

COA Cleans up DHS Mess

In re Orozco Minors , a rare published termination of parental rights case, the COA reversed a decision of the Macomb County Family Court terminating respondents’ parental rights when they were deported to Guatemala.
The case involved three respondents who were Guatemalan immigrants (husband, wife, and wife’s adult daughter). Between them, the respondents had four children. In 2005, DHS investigated the male respondent for alleged sexual abuse which was never substantiated. Another investigation followed in 2006 and the kids were removed from the home and DHS filed a petition to terminate parental rights on two of the respondents. After a combined trial, the court found that the petitioner failed to meet the burden of showing a statutory basis for termination by clear and convincing evidence, but took jurisdiction over the children anyway.
After failing to provide services and bring the children for scheduled visits, DHS phoned the INS and intentionally caused their deportation. At a 2007 hearing, the family court found that the petitioner’s actions were “morally repugnant” and noted that, despite the lack of cooperation from DHS, respondents still made attempts to visit the children.
DHS again sought to terminate parental rights, supplementing the original petition based on respondents’ alleged failure to attend visits and also because on the fact that respondents were deported. Testimony at the dispositional hearing revealed the caseworker’s extreme lack of effort to: (1) find the respondents services (to comply with agency agreement) in Guatemala, or, (2) send the children home to Guatemala with their parents. Nonetheless, the court found termination appropriate under §19(b)(3) based on the respondents’ inability to provide proper care and custody for the children because of their deportation.
The COA, citing United States Supreme Court, held that the family court could not properly terminate respondents’ parental rights on §19(b)(3) because the petitioner intentionally set out to create the ground for termination (based on deportation). By doing so, the petitioner violated respondents’ due process rights.
In addition to reversing on statutory and constitutional grounds, the COA held that the family court erred in its finding that termination was not clearly contrary to the children’s best interests. It cited the fact that the children are bonded with their parents, the only time they failed to visit was petitioner’s fault, and no abuse allegations were ever substantiated. In fact, the COA the record supported the COA conclusion that termination would harm the children as they would lose ties to their Guatemalan culture.
The COA further held that the family court’s continued exercise of jurisdiction over the children based on the supplemented petition was contrary to substantive due process because it constituted a de facto termination based on less than clear and convincing evidence of parental unfitness.
In this case, the actions of DHS, unnecessarily ripped a family apart. In many cases, these “morally repugnant” policies and actions are resolved by the family court before a family is subjected to prolonged separation. When it is not, as in this case, families suffer. Nobody can say for certain how frequently these alarming scenarios occur, but this Opinion definitely highlights the need for consistency on the part of all players in a termination proceeding. If an agency has too much power and acts contrary to a child’s best interests, the safety nets (L-GALS, Referees, Family Court Judges) must react swiftly, or nobody will be there to break the family’s fall.