Labels: appeal by right, child welfare, collateral attack, Court of Appeals, due process of law, In re Gazella, In re Hatcher, In re Sanders, MCR 3.993, removal, retroactivity, termination of parental or rights
The Court of Appeals published two cases this week in child welfare cases. The first In re Kanjia (Docket 320055) examined whether the Michigan Supreme Court's decision in Sanders applied to appeals from an order terminating parental rights and also whether Sanders applied retroactively to cases still pending when Sanders was decided. The COA concluded that Sanders applied and an appeal post-termination was not a collateral attack on jurisdiction. On the retroactivity question, the COA concluded that Sanders would have limited retroactivity for those cases where the issue of the one parent doctrine was raised in trial and on appeal. I disagree with this holding in part. The facts of Kanjia was that the parent's attorney did not raise the issue in the trial court, but also did not raise it on appeal, and in fact, only addressed the issue upon order of the court. Limited retroactivity shoul0l apply to all cases, regardless of whether the issue was raised, and especially if it has been raised somewhere, even if only for the first time on appeal. The second case is In re McCarrick/Lamoreaux (Docket 315510), where the COA analyzed whether there is an appeal by right from a removal. The court rules says that there is an appeal by right from "an order of disposition placing a minor under the supervision of the court or removing the minor from the home[.]” The COA interpreted that to me mean that a parent did not have an appeal from the initial removal (which often occurs on an emergency basis at the very beginning of the case). Instead, the COA construed this court rule to mean that the appeal was only from an order of disposition, whether it was a dispositional order removing the child or a dispositional order placing the child under the supervision of the court (which could include in-home placement).