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Usually when appellate judges write opinions, it is based on the facts or the law or sometimes even public policy. And appellate judges, like appellate lawyers, usually present their opinions in a very restrained fashion. So it was with great interest when I read the dissenting opinion by Judge Markey in In re COH. That case had a long history in the appellate courts, starting with an appeal of a juvenile guardianship and an adoption. In its opinion in the guardianship, the COA went into some detail about how the players in the system handled the completing adoption request of a grandmother and the foster parents. The COA reversed the trial court, and criticized how the grandmother was treated. Basedon its decision in the juvenile guardianship, the COA did not reach the adoption issue. The foster parents appealed and the Supreme Court issued an opinion reversing the COA and directing the COA to address the adoption issue. On remand, the COA majority opinion affirmed the trial court. What is most interesting is the short, but stern, dissenting opinion. While not a typical read of an appellate opinion, it is refreshing to see a judge stand up for their convictions when they believe an injustice has occurred.

Labels: adoption appeal, Court of Appeals, dissenting opinion, foster parents, grandmother, Judge Markey, juvenile guardianship, section 45

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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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