JUVENILE CASELAW UPDATE

BY KELLY WARD (VAN BUREN)

DELINQUENCY
 
Unpublished
 
In re MJB, Minor, (March 14, 2024), COA No. 364707, Muskegon County Circuit Court, Family Division.  In this case, MJB pleaded guilty to CSC III, and both attorneys and MJB acknowledged that MJB would have to register under the Sex Offenders Registration Act (SORA). Pursuant to MCL 28.723(1), a person who is convicted of a listed offense after October 1, 1995, must register under SORA, if an order of disposition is open to the general public, the individual was 14 years of age or older at the time of the offense, and the order of disposition is for the commission of an offense that would classify the individual as a tier III offender. CSC III is a listed offense in MCL 28.722(i) and MCL 750.520d.  MJB later filed a motion to strike the SORA registration requirement.  The trial court denied MJB’s motion to strike the SORA registration requirement and MJB appealed.  It is important to note that MCL 712A.28(3) states that in cases involving juveniles, “[b]eginning January 1, 2021, … records of a case brought before the court are not open to the general public and are open only to persons having a legitimate interest.” 

All parties now agree that individuals must register under SORA if they are “convicted” of a listed offense after October 1, 1995.  The definition of “convicted” under SORA for juvenile proceedings only refers to orders of disposition that are open “to the general public.”  The petition concerning MJB was filed after January 1, 2021, and therefore was not open to the public, including any order of disposition.  Because the records in MJB’s case are not open to the general public, MJB’s disposition does not constitute a “conviction” under SORA. 
 
Vacated and remanded.
 
CHILD PROTECTIVE PROCEEDINGS
 
Unpublished
 
In re Valdez-Drumm/Drumm/Valdez, Minors, (March 15, 2024), MSC No. 166192, COA No. 367545, Ingham Circuit Court, Family Division. In this case, the respondent parents’ rights were terminated by the lower in an order dated July 11, 2023.  After their parental rights were terminated, the trial court denied both respondents’ requests for appointment of appellate counsel. An untimely appeal was then filed with the COA. In an August 31, 2023, order, the COA advised that the “[a]ppellants may seek to appeal the July 11, 2023, order terminating parental rights by filing a delayed application for leave to appeal in this Court within 63 days after entry of that order, i.e., by September 12, 2023. Respondents failed to meet the September 12, 2023, deadline and the COA dismissed respondents’ claim of appeal by right as untimely. Respondents then filed an application for leave to appeal the COA’s August 31, 2023, order with the Michigan Supreme Court. On December 15, 2023, while retaining jurisdiction, the Michigan Supreme Court remanded this case to the Ingham Circuit Court for a redetermination of the respondents’ request for appointed appellate counsel. The trial court complied, stating its ruling to deny respondent parents appellate counsel was correct based on the information provided by the parent at that time.  The trial court’s response went on to state that the respondents would have qualified for court appointed appellate counsel based on newly submitted evidence.  Upon receipt of the trial court’s response, the Michigan Supreme Court ruled that pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the order of the Court of Appeals and REMAND this case to the Ingham Circuit Court to appoint appellate counsel and to file a claim of appeal for each respondent in accordance with MCR 3.993(D)(3), which shall constitute a timely filed claim of appeal for the purposes of MCR 7.204. See generally Halbert v Michigan, 545 US 605 (2005); People v Hill, 501 Mich 949 (2018); People v Nehmeh, 501 Mich 882 (2017); People v Anthony, 496 Mich 863 (2014).
 
In a concurring opinion, Justice Bolden writes that while this case appears to be a simple question of jurisdiction, the record shows that indigent respondents were left to navigate a complex appellate process without the assistance of counsel to which they were entitled, siting Gordon v Gordon, 510 Mich 1020 (2022) (MCCORMACK, C.J., concurring).
 
In a dissenting opinion, Justice Viviana writes that the COA correctly dismissed respondents’ claim of appeal for lack of jurisdiction due to respondents’ failure to timely file their claim under MCR 7.204(A)(1). The dissent states that the time limits for filing a claim of appeal or application for leave to appeal are jurisdictional, citing MCR 7.204(A); MCR 7.205(A), and the court acted without providing any legal authority, resulted in allowing the respondents to circumvent jurisdictional rules. In Halbert v Michigan, the United States Supreme Court held that criminal defendants who enter a plea of nolo contendere in Michigan are entitled to appointed counsel when their application for leave to appeal in the Court of Appeals provides the “first tier” of appellate review. Halbert v Michigan, 545 US 605, 609-610 (2005). But Halbert does not purport to create any rights for respondents in termination-of-parental rights cases. MCR 3.993(A) states an indigent respondent is entitled to the appointment of an attorney to represent the respondent on appeal and to preparation of relevant transcripts. For these reasons, it is unclear why the majority even cites Halbert. The other cases cited in the Court’s order are also irrelevant because they remanded for a new appeal because defendants lost their appellate right through no fault of their own. People v Anthony, 496 Mich 863, 863 (2014); see also People v Hill, 501 Mich 949 (2018); People v Nehmeh, 501 Mich 882 (2017). In this case, respondents initially submitted financial information that was insufficient to establish indigency and then failed to follow the COA’s directive to file a delayed application for leave to appeal.
 
VACATE the order of the Court of Appeals and REMAND this case to the Ingham Circuit Court to appoint appellate counsel and to file a claim of appeal for each respondent in accordance with MCR 3.993(D)(3), which shall constitute a timely filed claim of appeal for the purposes of MCR 7.204.
  
For Publication
 
In re J. Lovitt, Minor, ___ Mich App ___ (April 11, 2024), COA No. 367124, Lenawee Circuit Court, Family Division. In 2017, a Petition was filed to remove the minor from respondent’s care, alleging among other things, physical abuse, improper supervision, educational neglect, domestic violence, and mental health neglect.  The respondent entered a no contest plea to allow the court to take jurisdiction over the minor child and the respondent was ordered to participate in a case service plan that included a psychological evaluation, domestic violence classes, attendance at the child’s medical and mental health appointments, participation in weekly supervised parenting time, and to maintain suitable housing.  After approximately 11 months, JL was returned to the respondent’s care with in-home services and the court then terminated court jurisdiction.  After the court case was closed, respondent stopped participating in services.  After a jury trial in 2022, the court again exercised jurisdiction of the minor child and ordered the respondent to participate in and benefit from a treatment plan designed to improve her parenting skills and address domestic violence and suspected drug issues in respondent’s home.  Respondent refused to participate in services and had limited engagement in parenting time.  On June 20, 2023, DHHS filed a supplemental petition seeking termination of respondent’s parental rights.  Respondent failed to appear at the July 6, 2023, termination hearing.  Her attorney sought and was granted withdrawal from the case due to the respondent’s failure to appear at the termination hearing.  After taking testimony from the foster care caseworker, the court found “at the very least, one statutory ground for termination” had been established by clear and convincing evidence and it’s in the child’s best interests to terminate parental rights. 
 
On appeal, respondent argues that reversal is required because she was not properly served with the summons and notice of the termination hearing, the trial court violated her right to due process by allowing her attorney to withdraw at the start of the termination hearing, and due to ineffective assistance of counsel. 
 
There is no evidence in the lower court record that respondent was personally served with the summons and the supplemental petition. Moreover, there is no evidence that alternate service was requested or granted. It is difficult to conclude from the record how respondent was provided notice of the July 6, 2023, termination hearing. The trial court went forward with the termination hearing in respondent’s absence and allowed respondent’s counsel to withdraw from representation because of respondent’s failure to appear. Because respondent was not served in accordance with the requirements of MCL 712A.13 and the court rules, the trial court lacked jurisdiction to terminate her parental rights at the July 2023 termination hearing and plainly erred when it proceeded with the termination proceeding. In re Atkins, 237 Mich App at 250-251.
 
When an attorney seeks to withdraw from the representation of a client, both the attorney and the court have an obligation that the client is reasonably informed and given an opportunity to obtain other counsel. See Bruinsma, 34 Mich App at 177. The trial court may not permit an attorney to withdraw without first determining whether the attorney has good cause to do so. MRPC 1.16(b)(5). Neither of these requirements were satisfied here, and the trial court plainly erred when it permitted respondent’s attorney to withdraw.
 
Respondent was also prejudiced by the withdrawal of trial counsel. See id. (“In those instances [where a parent does not appear], assuming proper notice was given, a parent’s interests are protected by counsel.”). In this case, trial counsel’s actions left respondent’s interests unprotected. Trial counsel was not present to challenge the lack of proper service on respondent. Further, no substantive challenges were made to the supplemental petition. Respondent’s counsel indicated on the record that he could not be effective because, with respondent’s absence, he had no idea how she wished to proceed. This representation to the trial court is not well taken considering at the hearing that immediately preceded the termination hearing, counsel represented that respondent’s defense would include an argument that DHHS failed to accommodate respondent’s disabilities related to her medical issues. Trial counsel’s absence deprived respondent of the opportunity to provide this defense. The respondent has overcome the presumption that she was provided the effective assistance of counsel and is entitled to a new hearing.
 
We vacate the trial court’s order terminating respondent’s parental rights and remand for further proceedings consistent with this opinion.
 
Unpublished

In re A. R. WILLIAMS, Minor, (April 11, 2024), COA No. 367165, Oakland Circuit Court, Family Division. In May 2022, when ARW was about 10 months old, respondent and ARW were involved in a single-vehicle accident, and it was determined that respondent had a BAC of 0.26%. On July 27, 2022, DHHS petitioned the trial court to take jurisdiction over ARW and terminate respondent’s parental rights due to the accident, extensive criminal history, including multiple past convictions for operating a vehicle while intoxicated, and a previous termination of parental rights to two other children in 2018 due to serious and chronic neglect. The trial court authorized the petition.

ARW was in the care of her legal father and respondent was granted supervised parenting time, because a bond existed between ARW and respondent, and there was no risk of harm with supervised parenting. In October 2022, respondent was incarcerated on an outstanding warrant related to the May 2022 incident. In December 2022, respondent pleaded no contest, and the trial court entered an order of adjudication, taking jurisdiction and determining that statutory grounds existed to terminate respondent’s parental rights.  On February 6, 2023, a separate hearing was held to determine whether termination of respondent’s parental rights would be in ARW’s best interests. That best-interest hearing was held on February 6, 2023, and the trial court found that termination of respondent’s parental rights was in ARW’s best interests. The trial court concluded that ARW was “placed with a non-relative according to the statute and case law” and that placement was providing ARW with the stability that respondent had failed to provide. The trial court held that the factors for termination outweighed the bond between respondent and ARW. However, effective October 7, 2022, the definition of “relative” was amended. 2022 PA 200. Under the updated definition, a “relative” includes an individual who is at least 18-years old and is [r]elated to the child within the fifth degree by blood, marriage, or adoption, including the spouse of an individual related to the child within the fifth degree, even after the marriage has ended by death or divorce, the parent who shares custody of a half-sibling, and the parent of a man whom the court has found probable cause to believe is the putative father if there is no man with legally established rights to the child. [MCL 712A.13a(1)(j)(i).] ARW’s father was clearly a “relative” under this definition. The trial court mistakenly considered ARW’s father a “non-relative,” which resulted in the trial court failing to explicitly consider ARW’s placement with a relative as part of its best-interest analysis contrary to In re Mason, 486 Mich at 164, rendering the factual record “inadequate to make a best interests determination,” In re Mays, 490 Mich at 994, which requires us to vacate the court’s best-interest analysis and remand for further proceedings, In re Olive/Metts Minors, 297 Mich App at 44.

On appeal, DHHS contends that the trial court was not required to consider ARW’s relative placement because, unlike in In re Mason and In re Olive/Metts Minors, termination was requested in the initial petition. DHHS claims the trial court’s order should not be vacated because In re Mason and In re Olive/Metts Minors relied on MCL 712A.19a(8)(a)3, which states: (8) If the court determines at a permanency planning hearing that a child should not be returned to his or her parent, the court may order the agency to initiate termination of parental rights. Except as otherwise provided in this subsection, if the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the court shall order the agency to initiate proceedings to terminate parental rights. The court is not required to order the agency to initiate proceedings to terminate parental rights if 1 or more of the following apply: (a) The child is being cared for by relatives.

While it is true that this case did not proceed to a termination hearing under this subsection, DHHS does not adequately explain why that fact is significant. In re Mason and In re Olive/Metts Minors relied on MCL 712A.19a(8)(a) (previously subsection (6)(a)) because that subsection makes plain that the Legislature considers a child’s placement with relatives to be a factor that can strongly weigh against termination. The subsection states that, even if a trial court would otherwise be required to initiate termination proceedings, it is not required to do so if the child is in a relative placement. Both cases extrapolated from this that placement with relatives “was an explicit factor to consider in determining whether termination was in the children’s best interests.” In re Mason, 486 Mich at 164. See also In re Olive/Metts Minors, 297 Mich App at 43. Nothing about the text of MCL 712A.19a(8)(a) suggests that it is identifying a factor that is required to be considered when determining whether termination is in a child’s best interests. That was a reasonable inference that the courts drew from the statute’s text that if placement with a relative is so significant that a trial court can decline to initiate termination proceedings that it would otherwise be required to order, then trial courts should be required to take that placement into account when deciding whether termination is in the child’s best interests. This reasoning holds true for any best-interest analysis, regardless of the way termination proceedings were initiated. Nothing in either In re Mason or In re Olive/Metts Minors suggests that those cases holdings were pertinent only to cases proceeding to termination under MCL 712A.19a(8)(a), as the DHHS contends.
​
Regardless of factors weighing in favor of termination, we vacate the trial court’s best interest determination and remand for further consideration of ARW’s best-interests consistent with this opinion.
  
Unpublished
 
In re WEEMS/MCDANIEL/HILL/HUNTER, Minors, (April 18, 2024), COA No. 368408, Washtenaw Circuit Court, Family Division. This case is an interlocutory appeal filed by the director of Michigan Department of Corrections (MDOC) appealing a trial court’s October 10, 2023, order directing appellant  to “allow supervised, video visitation” two times per month between respondent-mother and five of her seven minor children while respondent-mother was incarcerated in the Huron Valley Women’s Correctional Facility (HVWCF), after she was convicted of first-degree criminal sexual conduct against one of her minor children. MDOC and the HVWCF warden argued in the trial court that the court did not have subject-matter jurisdiction over its administrative rules regarding visitation in its penal institutions.
 
After the mother failed to receive the ordered parenting time, she filed a motion to show cause. The trial court held a hearing on the motion to show cause. At the time the trial court held this hearing, it had not held an adjudication hearing, and the minor children had been placed under the court’s jurisdiction under MCL 712A.2(b). The court entered an order requiring appellant to “allow supervised, video visitation” two times per month between respondent-mother and four of her seven minor children while respondent-mother was incarcerated in the HVWCF.
 
Although MCL 712A.6 grants the court “broad authority” to enter dispositional orders, that authority is only applicable after the court has found that the child is within the court’s jurisdiction under MCL 712A.2(b). In re Sanders, 495 Mich 394, 404-406; 852 NW2d 524 (2014); see also MCL 712A.6.
 
The court could not rely on MCL 712A.6 as authority for entering the order at issue in this case because the court had not yet obtained jurisdiction over the children under MCL 712A.2(b). The trial court erred as a matter of law without first properly obtaining jurisdiction over the children, thereby skipping the adjudicative phase.
 
Vacated and remanded for further proceedings consistent with this opinion.
 
Unpublished
 
In re J. S. ALLEN, Minor, (April 25, 2024), COA No. 365457, Wexford Circuit Court, Family Division. JA and his mother lived in Wexford County. Respondent, who is JA’s legal father and lives in Georgia, had been absent for most JA’s life. In October 2022, the court took jurisdiction over JA, and placed JA with the department. Respondent was given supervised parenting time. One month later, the mother passed away, and, after she was removed from the petition, respondent’s counsel made an oral motion to have JA returned to respondent father. In January 2023, the trial court convened a placement hearing, denying return of JA to respondent but leaving the permanent goal reunification. In mid-February, the petitioner filed an amended petition against the respondent requesting that the trial court take jurisdiction over JA and remove him from respondent’s care. Another amended petition was subsequently filed with new allegation that moved to suspend respondent’s parenting time. In March, the trial court convened determining that venue was not proper in Wexford County and dismissed the petitions. Petitioner and the GAL objected to this decision.
 
JA was living in Wexford County when this case began and throughout the proceedings. At the time the petition was filed, JA was “found within the county” because he was “physically present” there. There were allegations that respondent had been absent from JA’s life for approximately 12 years. New allegations then arose of criminality, domestic issues, and mental health concerns for JA. Therefore, the requirements of MCL 712A.2(b) and MCR 3.926(A), assuming there was probable cause to support them, would be met. The trial court’s concerns that respondent was in Georgia and that the allegations occurred in Georgia was immaterial because JA was “found within” Wexford County.
 
The trial court had authorized a petition before the death of JA’s mother, the court was familiar with the case and circumstances, and there was no argument that respondent would be unable to attend the proceedings. See In re Pasco, 150 Mich App 816, 824; 389 NW2d 188 (1986) (reasoning that “[t]he motion came over three years after the court assumed jurisdiction,” that the trial court had been “familiar with the case and the surrounding circumstances,” and that “no evidence was presented that denial of the motion would prevent respondent from attending the termination hearing”). Although the trial court determined that JA should be returned to respondent’s care, serious allegations were pending against respondent and allegations that JA needed time to process his mother’s passing and that JA’s mental health was suffering. See In re Anjoski, 283 Mich App 41, 44; 770 NW2d 1 (2009) (holding that a surviving parent is not automatically entitled to have their child returned “where sufficient legitimate and compelling indicia exist on the record indicating that a noncustodial parent is currently unfit”). The trial court must examine the amended petitions’ allegations and determine whether there is probable cause to authorize the amended petitions. If respondent should move for a change of venue to Georgia, the trial court must follow MCR 3.9261 to determine whether transfer to another court is warranted.

Reversed and remanded for further proceedings consistent with this opinion.