Right to counsel

Generally

An indigent parent has a statutory right to appointed counsel in every stage of an abuse/neglect proceeding, which includes termination of parental rights cases. Mich. Comp. Laws. 712A.17c(4); see also In re Rood, 763 N.W.2d 587, 599 n.21 (Mich. 2009) (applying Mich. Comp. Laws 712A.17c(4) to termination proceedings).  The parent must be advised of this right when they first appear in a child protective proceeding per Michigan Court Rule 3.915(B).  However, there is a request requirement for counsel to be appointed. Id. (providing that at the parent’s first court appearance in a child protective proceeding, “the court shall advise the respondent . . . that . . . the respondent has the right to a court appointed attorney at any hearing conducted pursuant to these rules, including the preliminary hearing, if the respondent is financially unable to retain an attorney, and, . . . if the respondent is not represented by an attorney, the respondent may request a court-appointed attorney at any later hearing.”); see also In re Hall, 469 N.W.2d 56 (Mich. App. 2011) (noting that language in Mich. Ct. R. 3.915(B)(1) regarding parent’s desire for an attorney “requires affirmative action on the part of a respondent in order to have an attorney appointed at statutory review hearings”).

Rule 3.915(B) was amended in January 2012 to add that the right to counsel extends to any preliminary hearings.

The right to counsel includes the right to effective assistance

The Court of Appeals has said that “[a]lthough the constitutional provisions explicitly guaranteeing the right to counsel apply only in criminal proceedings, the right to due process also indirectly guarantees assistance of counsel in child protective proceedings.  Thus, the principles of effective assistance of counsel developed in the context of criminal law apply by analogy in child protective proceedings.” Family Independence Agency v. Bowman (In re CR), 646 N.W.2d 506, 513 (Mich. Ct. App. 2001), overruled on other grounds, Dep’t of Human Servs. v. Laird (In re Sanders), 852 N.W.2d 524 (Mich. 2014).

As to nonoffending parents

In In re Williams, 779 N.W.2d 286, 298 (Mich. Ct. App. 2009) (per curiam), the Michigan Court of Appeals took up the question sua sponte of the failure to appoint counsel for an nonoffending parent in a termination case pursuant to the statute, noting that “we cannot ignore a process that casts serious doubt on the integrity of the proceedings and would risk substantial injustice if allowed to stand unexamined.” The court found that from the moment where the state supplemented its petition against the mother to add that the nonoffending father was unable to continue his custody of the children, the father was essentially a respondent entitled to counsel. The majority opinion also held that in calculating indigence, it is error to include the income of an adult respondent’s parents, even if they cohabitate.

The right to counsel extends to appeals

Michigan Court Rule 3.977(I)(1) adds that immediately after entry of an order terminating parental rights, the court shall advise the respondent parent in writing of the right to appellate review and to an attorney if the respondent is unable to afford one.