Discretionary appointment of counsel

The Michigan Supreme Court has said that trial courts have discretion to appoint counsel in involuntary stepparent 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).  The Sanchez court spoke of “fairness” and discussed Lassiter but grounded its analysis in “the Probate Court Rules and the residuary authority of the Juvenile Court Rules.” Id. at 354.

Courts continue to apply the Sanchez factors.  See e.g., In re AGB, No. 360670, 2023 WL 176082 (Mich. App. Jan. 12, 2023) ("A trial court’s failure to consider [the Sanchez] factors is an abuse of discretion.”).  In doing so, a few courts of appeals have 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 for counsel; [2] respondent was not free to appear in court; and [3] appointment warranted "in view of the trial court's acknowledgment of the complexities of this case"). 

In regard to the right to counsel on appeal, 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." Matter of Sanchez, 375 N.W.2d at 359.