JUVENILE CASELAW UPDATE

BY TRACEY MARTIN (WAYNE)

DELINQUENCY

CASE:  In re EE, Minor, ____ Mich App____ (April 13, 2023),  No. 358457, Eaton Circuit Court

COURT:  Michigan Court of Appeals (FOR PUBLICATION)

JUDGES: Gleicher, Boonstra, and Cameron; Concurrence – Gleicher; Separate Concurrence - Cameron and Boonstra

ISSUES:
Right to counsel in truancy proceedings under MCL 712A.17c & MCR 3.915(a); MCL 712A.2(a)(4); Juvenile waiver of right to counsel; MCL 712A.17c(3); MCR 3.915(A)(3); People v Anderson; Unequivocal request to proceed pro se; Knowing, intelligent & voluntary waiver; Whether acting as own counsel would disrupt, unduly inconvenience, & burden the trial court & the administration of its business; Requirement that an attorney be appointed for a juvenile in a delinquency proceeding if the trial court determines it is in the juvenile’s best interests; MCR 3.915(2)(e)

SUMMARY:
Concluding that the trial “court’s improper waiver finding and its failure to determine the children’s capacity and capability to represent themselves deprived” respondents-AE and EE of their right to counsel, the court vacated the orders of disposition following its adjudication of guilt of school truancy, and remanded. The children made “several arguments centering on the trial court’s ruling that they would represent themselves.” The court held that they “had a right to counsel in the truancy proceedings under MCL 712A.17c and MCR 3.915(a).” 

This case hinged “on a related issue: whether the trial court correctly determined that the children were properly required to represent themselves without the assistance of counsel.” The court found that although the “case does not implicate the Sixth Amendment; the jurisprudence surrounding self-representation in criminal cases informs our analysis. Whether made by a child or an adult, a request for self-representation must be clear and unequivocal.” In this case, the trial court ruled that AE and EE “waived their right to counsel despite that they never requested self-representation. The court exacerbated this error by neglecting to inquire regarding the children’s understanding of their right to counsel, the ramifications of its waiver, or the risks of self-representation.” 

The court noted that AE and EE “never requested self-representation” – AE never agreed to it on the record and EE’s answers to the trial “court’s inquisition fall far short of an unequivocal request to proceed pro se.” On remand, the court encouraged the trial “court to take steps to ensure that the children be afforded a meaningful opportunity to consult with counsel and to knowingly, understandingly, and voluntarily relinquish their right to counsel, if they unequivocally decide to do so.”

Also, the trial “court’s failure to consider the children’s best interests compounded its other errors. Given the pitfalls of self-representation even for adults, the circumstances under which self-representation will serve a child’s best interests are likely to be extremely rare.” Finally, the court noted “that the trial court’s errors were not remedied by appointed counsel’s continued presence in the courtroom [.]”

Orders of disposition vacated, reversed and remanded.

ABUSE / NEGLECT

CASE:  In re HULL, Minor,__Mich App__(February 21, 2023), No. 361537, Washtenaw Circuit Court

COURT:  Michigan Court of Appeals (FOR PUBLICATION)

JUDGES:  Yates, Jansen, and Redford

ISSUES:
Jurisdiction to reopen a child protective proceeding & order the Department of Health & Human Services (DHHS) to provide services after terminating a juvenile guardianship; MCR 3.979(F)(5); MCL 712A.2(b) & 712A.19a(17); Effect of a child turning 18; Extended foster-care services; Young Adult Voluntary Foster Care Act (YAVFCA); MCL 400.647

SUMMARY:
The court held that the trial court had the authority to reinstate the child protective proceeding (referred to as the NA case) as to TH and direct the DHHS to resume providing her services after terminating her juvenile guardianship, even though TH had turned 18. TH and her younger sibling “entered the foster-care system as minors because of abuse or neglect by their parents.” A juvenile guardian (H) was appointed for them. Primarily due to “special needs that prevented her from living on her own”, when TH turned 18 years old she “signed a young adult guardianship assistance extension agreement” extending the guardianship. After she was arrested for domestic violence against her sibling and H, H petitioned to terminate her appointment as guardian. The trial court later entered the order challenged by the DHHS on appeal. The DHHS contended that “because TH was in a guardianship rather than the foster-care system when she turned 18, she cannot now receive extended foster-care services.” 

The court concluded that revocation of a “juvenile guardianship results in the return of jurisdiction over the child under MCL 712A.2 (b), which grants authorization for child protective proceedings and foster-care services.” The court found that the “trial court released jurisdiction over TH in the NA case when it opened the juvenile guardianship, but an NA case is not necessarily limited to children under 18 years of age, . . . and the courts are not obligated to close an NA case when a youth turns 18 years old if it is not in the child’s best interests to close the case at that point. If the NA case continues past the age of 18, as authorized under other Michigan laws, the funding stream will not automatically change. Thus, as long as TH’s best interests and authority other than the YAVFCA—such as MCL 712A.2a(1)—would have dictated that TH’s NA case could remain open after she turned 18 years old, then the NA case could also be reinstated after she turned 18.” 

The court concluded the “intent of the drafters of the applicable statutes and court rules supports an approach that permits a trial court to reinstate a former NA case for a youth aged 18 to 20 whose extended guardianship was terminated.” Thus, it held that “the trial court properly reinstated TH’s NA case when it terminated her extended juvenile guardianship.” 

Affirmed.

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CASE:  In re NRC, Minor, ____ Mich App____ (March 16, 2023),  No. 362915, Antrim Circuit Court

COURT:  Michigan Court of Appeals (FOR PUBLICATION)

JUDGES:  Cameron, M.J. Kelly, and Jansen

ISSUES:
Termination of parental rights in a stepparent adoption proceeding; MCL 710.51(6)(a); “Substantially comply” with the child support order; “Substantial” & “comply”; Use of dictionary definitions to define terms undefined by statute; In re CDO (OK Civ App)

SUMMARY:
Noting that there had been no published decision defining “substantially comply” for purposes of MCL 710.51(6)(a), the court held that the trial court did not err in finding respondent-father (Riley) substantially complied with the order of child support. 

Thus, the court affirmed the trial court’s order granting a directed verdict to him in this stepparent adoption case. Petitioner-mother (Amanda) argued “that the trial court employed the incorrect legal standard when evaluating the motion for directed verdict under the two-pronged analysis of MCL 710.51(6).” She offered a definition for the term “substantially comply” relying on a case from Oklahoma and argued “the trial court erred when it did not comport its analysis with her definition.” 

After reviewing dictionary definitions, the court held that, “under MCL 710.51(6)(a), a parent substantially complies with a child support order when they have made a considerable quantity of the payments required by the order.” It concluded that because its definition employed “the correct principles of statutory interpretation, we need not rely on another state’s opinion to reach our decision.” The next question was whether the trial court erred in finding that Amanda and her husband (C) failed to “establish the requirements of subsection (6)(a)—specifically, that Riley had not substantially complied with the support order.” 

The evidence showed he “made many of his child support payments, that he often caught up with arrearages by making lump sum payments, and at the time the petition was filed his arrearage totaled only $146. This small arrearage in relation to the thousands of dollars in child support Riley paid in the preceding two years is insufficient to show Riley failed to substantially comply with his child support obligation. Amanda and [C] failed to meet their burden under subsection (6)(a) and the trial court did not err in granting Riley’s motion for directed verdict.” Given that the court concluded “the trial court correctly granted the motion for directed verdict because Amanda failed to satisfy subsection (6)(a),” it did not need to consider whether she satisfied the requirements under subsection (6)(b).

Affirmed.

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CASE:  In re BWJ, Minor, ____ Mich App____ (March 30, 2023), No. 363607, Mecosta Circuit Court

COURT:  Michigan Court of Appeals (FOR PUBLICATION)

JUDGES:  Redford, K.F. Kelly, and Boonstra

ISSUES:
Termination of parental rights to a child born out of wedlock; The Michigan Adoption Code; MCL 710.31(1); MCL 710.36(1) & (6); MCL 710.39(1) & (2); Factors to consider in determining the child’s best interests; MCL 710.22(g)

SUMMARY:
The court concluded the trial court properly ruled that MCL 710.39(2) did not apply here and instead proceeded under MCL 710.39(1). But it held that MCL 710.39(1) requires a trial court to determine the child’s best interests by considering, evaluating, and determining the factors set forth in MCL 710.22(g)(i) through (xi). In this case, the trial court’s “lack of best-interest factor analysis and inadequate explanation on the record” could not support its decision to terminate respondent-father’s parental rights to the child. 

Thus, the court vacated the order terminating respondent’s parental rights and remanded for the trial court “to conduct a best-interest factor analysis as prescribed under MCL 710.22(g), and set forth its factual findings and conclusions of law on the record to enable appellate review.” On appeal, respondent argued that he came within the provisions of MCL 710.39(2) and the trial court erred in determining he did not. The court disagreed, noting that he admitted “he did not have an established custodial relationship with the child. He had had no contact with the child for nearly three years. He admitted that, except for perhaps the first few months, he had not provided substantial and regular support or care during” the mother’s (J) pregnancy and that while he offered support at unspecified times after the child’s birth, J and her parents (petitioners in this case) “rejected it and he did nothing legally to enable him to provide support for the child.” 

He further admitted he had not provided the child with substantial or regular support “during the 90 days before he received notice of the hearing.” Contrary to his assertion, the court found that “good intentions and attempts to establish a custodial environment are” not enough to allow “a trial court to proceed under MCL 710.39(2).” However, it noted that the “the trial court did not cite, quote, or reference the statutory best-interest factors set forth in MCL 710.22(g) which are required for consideration in determining whether granting a putative father custody or terminating his parental rights serves the child’s best interests.” While it appeared from its “analysis stated in its ruling from the bench that it possibly considered some” of those factors, it did not consider or make findings on several of them. 

Affirmed in part, reversed in part, and remanded.

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CASE:  In re A.K. Dixon, Minor, ____ Mich App____ (April 20, 2023), No. 363388, Genesee Circuit Court

COURT:  Michigan Court of Appeals (FOR PUBLICATION)

JUDGES:  Gleicher and O’Brien; Dissent – Maldonado

ISSUES:
Child placement; MCL 712A.2(b)(1)(C); Modification of placement; MCR 3.966(A)(1); Removal; MCL 712A.2(b); Principle that a parent may entrust the care of his or her children for extended periods of time to others “without court interference by the state as long as the child is adequately cared for”; In re Weldon; Parental fitness; Neglect; MCL 722.602; Authorization of a petition for jurisdiction; MCL 712A.13a(2); Due process; In re Sanders; In re Eldridge; Guardian ad litem (GAL)

SUMMARY:
The court held that although the DHHS’s delays in this case were “deeply troubling,” the trial court reasonably determined that the fictive kin suggested by respondent-father was an inappropriate placement. Within days after the child’s birth, the DHHS petitioned for his removal from his mother and for the termination of her parental rights. It knew that respondent was the child’s likely father. Respondent, who was incarcerated, expeditiously established his paternity. But the DHHS neglected to file a petition naming him as a respondent for 15 months after his child was placed in foster care. During this time, respondent urged the trial court to place his son with PM, fictive kin. The trial court rejected this option, and ordered the child’s removal. 

On appeal, the court noted that respondent “was not immediately available to ensure that his selected custodian could adequately care for” the child, who “was already in foster care by that time, as ordered by the [trial] court when the child was removed from his mother’s care. And although [respondent] quickly designated PM as his son’s custodian, evidence submitted . . . by both the DHHS and the GAL supported that PM would not adequately care for the child.” The majority disagreed with the dissent’s contention that once respondent directed that the child be placed with PM, the trial court had no legal authority to leave the child in foster care. Respondent’s “incarceration and his absence at the child’s birth put him in the unenviable position of being unable to directly place his child without DHHS input. When he was able to direct [the child’s] placement, the child was 5½ months old and living in a stable foster family placement.” 

Balancing the interests pursuant to Eldridge, the court concluded the trial court did not err by initially refusing to transfer the child’s custody. But it noted “the evidentiary basis for this refusal was not well fleshed out, and on remand [directed] that the DHHS conduct a home study of PM forthwith.” Despite the “ongoing violation of father’s constitutional rights, the [trial] court ultimately properly took jurisdiction over the child in relation to father.” When the trial court allowed him more “time, he could name no other possible placement for the child.” This left the child “‘without proper custody or guardianship’ supporting jurisdiction.” Further, the petition outlined respondent’s “history of violent and drug-related crimes . . . ,” the most recent of which resulted in his present imprisonment until at least October of 2023 “and possibly as late as 2028. [He] cannot personally provide a home for his child ‘by reason of . . . criminality.’ Absent a suitable alternate placement, the [trial] court was bound to take jurisdiction over” the child in relation to respondent. “Going forward, the [trial] court and the DHHS must tread carefully to avoid repeating their mistakes.” 

Affirmed.