Discretionary appointment of counsel

Litigation, Termination of Parental Rights (Private) - Birth Parents

The Michigan Supreme Court has said that trial courts have discretion to appoint counsel in involuntary adoptions, and "[i]n exercising such discretion, the trial court will be guided by the principle of assuring the nonconsenting parent the ability to present a case properly, measured in the particular case by factors such as the relative strength of the adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity." Matter of Sanchez, 375 N.W.2d 353, 358-59 (Mich. 1985). Sanchez added that "where the trial court has determined that trial counsel is necessary to protect the noncustodial parent's interests at the termination proceedings, counsel should also be appointed on appeal, absent some change in circumstances, identified by the trial court, which would justify denial of appellate counsel."


A few courts of appeals have applied the Sanchez factors and found that counsel should have been appointed for the noncustodial father in the particular adoption case. See e.g. Matter of Fernandez, 399 N.W.2d 459, 461 (Mich. Ct. App. 1986) (in case involving incarcerated father, court decides appointment warranted even though respondent never requested it because 1) respondent wanted to retain counsel and indicated inability to pay it; and 2) respondent not free to appear in court; and 3) appointment warranted "in view of the trial court's acknowledgment of the complexities of this case").

Appointment of Counsel: discretionary Qualified: no