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Due Process Rights in Termination Case Not Violated by Failure to Sua Sponte Appoint Counsel

Posted on Tuesday, September 27, 2016
 In this case (In re Trumble, No 330627) Respondent Mother appealed the Gladwin Circuit Court order terminating her parental rights to her child arguing that the trial court violated her due process by its failure to sua sponte or on its own appoint an attorney to represent her. The Court of Appeals, affirmed the trial court order, stating that because the respondent knowingly declined the offer of appointed counsel at the preliminary hearing and had never shown she suffered from an obvious cognitive impairment, she failed to show that the trial court denied her due process by declining to sua sponte appoint counsel.

The facts show that the Respondent:
          1.Waived counsel at the preliminary hearing stating she could read, she wished to      represent herself and admit to the petition and participate in a service plan.
2. Although the trial court told her such admissions could lead to termination, she admitted to the allegations.
3. She received notice of subsequent hearings but didn’t attend.
4. Only visited her child 5 times in 4 months.
5. Failed to comply with the service plans.
6. Failed to appear at the termination hearing although notified by mail and by phone and continued to reside in Indiana.

Parents have a fundamental liberty interest in making decisions regarding the care,
custody and control of their children that is protected by the due process clause of the Fourteenth Amendment of the United States Constitution. The court’s failure to sua sponte appoint counsel did not, however, deprive Respondent of due process. The court has interpreted MCR 3.915(B)(1) to require “affirmative action on the part of the respondent to trigger the appointment and continuation of appointed counsel in all hearings which may affect the respondent’s parental rights.” In re Hall, 188 Mich App 217, 218; 469 NW2d 56 (1991).
In this case, Respondent failed to appear at the termination hearing and moved out of state. By her behavior she affirmatively distanced herself from her own case rather than affirmatively working toward return of her child or asking for appointment of counsel.
Respondent also argued that the trial court should have appointed counsel because both the court and the case worker expressed concern about her understanding of the seriousness of her situation. Unlike the cited opinion In re Hicks/Brown, Minors, (Docket No. 328870, issued April 26, 2016), where the court held that the DHHS and courts must actively assist intellectually, cognitively or developmentally impaired parents, there were no overt signs of cognitive impairment in Respondent as was apparent in Hicks. Respondent was articulate and had no apparent difficulty asking and answering questions.

The Court of Appeals held that the trial court didn’t deny her due process rights by declining sua sponte counsel and the decision below was affirmed. 

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COA makes it easier for trial courts to terminate parental rights

Posted on Friday, May 10, 2013
The COA held in a published opinion that the trial court does not have to find that termination is in the best interests of the child by clear and convincing evidence but only by a preponderance of the evidence. In re Moss Minors, issued May 9, 2013 (Docket 311610). The Court of Appeals based this decision on the change of the language from the earlier statute, which said the court could terminate “UNLESS the court finds that termination of parental rights to the child is clearly not in the child’s best interests.” The current version of the statute reads that if the court finds the statutory grounds to terminate and that termination is in child’s best interests, then it can terminate. Even though the Legislature eliminated the difficult burden from the previous statute that required the parent to demonstrate that it is not in the child's best interests to terminate, and made it easier for parents, by requiring the prosecutor to show that it is the in the child's best interest to terminate, the Court of Appeals' interpretation of the statutory burdens of proof make it easier for the trial court to terminate because the prosecutor only has to show by a preponderance of the evidence that termination is in the child's best interests. Because termination has constitutional implications to a parents right to the care custody and control of their children, I would think that the higher clear and convincing standard would be required (see Judge Gleicher's concurring opinion in Hollis v Miller). And accordingly, the COA must read the statute in a way that is constitutionally permissible. Judge Wilder wrote a concurring opinion, but his opinion contains the same problem as the majority --it accepts the preponderance of the evidence standard for the best interests analysis. His opinion goes further and states that, once the statutory grounds for termination have been established by clear and convincing evidence, that the parent no longer has a liberty interest in their child. So although MCL 712A.19b(5) requires both statutory grounds and best interests before the trial court can terminate, apparently, according to the concurrence, the liberty interest ends before the trial court even considers what is in the child's best interests.

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