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             In the matter of In re B. Hadd, Minor, No: 337095, 337097, the termination of parental rights of both parents by the lower court was upheld by the Michigan Court of Appeals (MCOA). The application of the MCOA order is being held in abeyance pursuant to the order of the Michigan Supreme Court, SC: 156604 because the Court believes the decision in the case of In re Hill, Minors (No.155152) presently before it may resolve a similar issue raised in the Hadd application for leave to appeal.

Facts:

            The trial court found that grounds for terminating respondents’ parental rights were established under MCL 712A.19b(3)(c)(i), (c)(ii), (g), (j), and (l). The respondent-mother had not addressed her substance abuse issues during the 24 months the child was under the court’s jurisdiction; nor did she seek help for her mental health issues. The evidence provided, concluded the MCOA, was sufficient to find the grounds for terminating her rights under Sec. 19b(3)(g) and (j).

            The respondent-father argued that by terminating his parental rights to his child, the trial court violated his rights under the Michigan Medical Marihuana Act (MMMA), MCL 333.26371 et seq. Citing MCL 333.26424(a), he contends that he could not be denied custody or have his parental rights terminated because of his continued medical use of marijuana.

Medical Marihuana use and parental rights.

            A parent’s right to custody or visitation when the parent holds a valid medical-marijuana card is addressed in MCL 333.26424(d), which provides:

            “A person shall not be denied custody or visitation of a minor for acting, in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

The MCOA rejected the father’s reliance on the statute for two reasons:

            According to the trial court, his rights were terminated because of his failure to cooperate with the terms of his treatment plan, failure to explore alternative treatment options as recommended in his psychological evaluation and his failure to present evidence of his condition justifying a medical need for marijuana or that marijuana was a recommended treatment for it.

            The MCOA reviewed the best interests’ standard and found that the termination of both parents’ rights was in the best interests of the child. Both parents were non-compliant with treatment plans. The father contends that apart from his marijuana use, there was no evidence of neglect—noting that his supervised visits were appropriate. However, he never made the effort to progress beyond supervised visitation.

            The matter is now before the Supreme Court awaiting the decision in In re Hill, Minors, which involves the issue of whether the collateral attack rule bars a challenge to the lower court initial exercise of jurisdiction. The same issue was raised by the father in Hadd arguing that the trial court violated MCR 3.971(B)(4) by failing to advise him at the time of his plea that the plea could be used as evidence in a later proceeding to terminate his parental rights.

            We will keep you advised of the Supreme Court’s decision on that issue.

Charging Lien: Discharged attorneys may obtain a charging lien, which “is an equitable right to have the fees and costs due for services secured out of the judgment or recovery in a particular suit.” George v Sandor M Gelman, PC, 201 Mich App 474 (1993).

The Michigan Court of Appeals (MCOA) affirmed the lower court’s decision reducing the amount of an attorney’s charging lien in RivertownDevelopment Group v West Congress Street Partners, No. 330728.

Facts:

Petitioner Lawrence Walker was retained in May 2014 as counsel for West Congress Street Partners in a litigious landlord-tenant dispute. The relationship broke down, a new lawyer was hired and Walker was allowed to resign as counsel by court order dated March 11, 2015. A two-day hearing was held to determine the accuracy of Walker’s $35,094 charging lien on the settlement in April 2015. Following the hearing, the court determined the amount owed to be $18,889.62 calculated as follows:

            167 hours @ $300 = $50,100.00

            Expenses                         2,833.62

            Payments                     (34,044.00)

            Balance due                  $18,889.62

Walker, on his appeal, claimed the court abused its discretion by (1) making a math error when it found that West Congress made prior payments of $34,044 when the actual amount was $30,155, 2) reducing the billable hours from 217 to 167.

Analysis: The MCOA affirmed the lower court on both counts.

Math error: While it may be true that the math was in error and the correct amount of payments was $30,155, the error was not raised during the two-day hearing and the parties accepted the $34,000 figures as accurate. “It is not the trial court’s burden to check petitioner’s math when the petitioner’s own documentation clearly stated that payments on the account totaled $34,044.14.”

Hour Reduction: Courts calculate attorney fees by first determining the reasonable hourly rate customarily charged in the locality for similar services, then multiply by the reasonable number of hours expended. The MCOA supported the reduction in hours stating: “…the trial court explicitly stated that its decision was based on the parties’ testimony, petitioner’s billing statement, and the court’s knowledge of billing in general.” After the 2-day hearing, MCOA stated that “the trial court was in the best position to determine the reasonable hours expended by petitioner, which it did.”

The court “did not abuse its discretion by not crediting petitioner with all of the hours listed in the billing statement” and the Michigan Supreme Court said that in determining the number of reasonable hours, trial courts should “exclude excessive, redundant or otherwise unnecessary hours regardless of the attorneys’ skill, reputation or experience.”

Thus, the MCOA concluded that the trial court’s determination Walker reasonably expended 167 hours rather than the 217 billed on defendant’s case fell within “the range of principled outcomes.”

Lessons to be learned: Check your math more than once and be prepared to defend your hours when requesting enforcement of a charging lien or payment of your bill in court. 

            
            Change in circumstances often lead to a motion to change custody. In D’itri v Bollinger, unpublished per curiam opinion of the Court of Appeals, Docket 337815 (2017), the mother of the child filed a motion to change custody claiming there was a change in circumstances in the child’s living situation. Slip op at 2. The father’s wife passed away, and the mother claimed the father stopped allowing the child to partake in her extra-curricular activities, did not provide healthy meals, and did not provide a clean home. The child also felt a loss of emotional connection with her father after the step-mother’s death, including frequently eating dinner alone in her room and the child texting the mother that she wanted to see a therapist and was “going insane.” The father acknowledged that the death of his wife had been a difficult adjustment for him, but denied this was grounds to change custody. A conciliator conference was held to determine if it was proper to revisit custody, and the conciliator recommended a change in custody. The lawyer guardian at litem also recommended a change of custody. The trial court denied the mother’s motion without an evidentiary hearing and stated she did not have proper cause.
hearing is not necessary for the Threshold Question: when the facts are not disputed and when the alleged facts would not establish proper cause. The trial court did not hold an evidentiary hearing even after the recommendation of the conciliator and lawyer guardian at litem found that the facts would require a change of custody. The trial court should have determined whether an evidentiary hearing was necessary, which it did not do. The Court of Appeals determined that the failure to hold an evidentiary hearing on the threshold question when the facts were disputed was clear legal error. The facts alleged in the motion, if true, would constitute proper cause or change in circumstances.