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Labels: appeal by right, Court of Appeals, Mental Health Code, Michigan Appeals, michigan court of appeals, michigan supreme court, personal representative, probate appeal, supreme court

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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).

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

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In re Green involved placement of children in a juvenile guardianship. What I found striking about the decision is that the COA held in this appeal by right that the issue was barred by the COA’s previous denial of a delayed application from a different order relating to the juvenile guardianship. In the delayed application, the parent challenged a Nov 2012 Order (following a dispositional review hearing and maintaining the juvenile guardianship placement) on the grounds that the guardianship violated the parent’s due process rights and resulted in a de facto termination absent clear and convincing evidence. There were other issues raised as well. The COA denied leave "on the merits." This is the standard language used in almost every order denying leave to the Court of Appeals. In the appeal by right, the parent challenged a July 2013 order, which formally established the juvenile guardianship. According to the COA, respondent raised the “very same arguments that she proffered in her application for leave, which were rejected on the merits by this Court.” Based on this, the COA applied the law of the case and affirmed the trial court’s decision. It seems that if the parent is appealing a different order, it should not matter that the parent is raising the same substantive issue, as it pertains to that new order. Indeed, in the Green case, there was more factual development, and other things had changed. The problem arises from giving res judicata effect to a leave denial when the COA does not give full consideration to the case in the first place.

Labels: appeal by right, application for leave to appeal, juvenile guardianship, law of the case, leave denied on the merits, Oakland County, res judicata

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