Discretionary appointment – Incarcerated parents

A Michigan court rule aimed at protecting the rights of incarcerated parents permits the court to appoint counsel for such parents in cases related to child custody and similar matters.  The rule states that it applies to:

(1) domestic relations actions involving minor children, and
(2) other actions involving the custody, guardianship, neglect, or foster-care placement of minor children, or the termination of parental rights, in which a party is incarcerated under the jurisdiction of the Department of Corrections.

Mich. Ct. R. Rule 2.004(A).  It explicitly references the right to access courts, permitting an incarcerated parent to “attend” court proceedings involving the disposition of a minor child by telephone, and it sets forth numerous procedural requirements for protecting such attendance if the incarcerated parent elects to attend. Mich. Ct. R. Rule 2.004(C).  The purpose of the rule is for the court to ascertain whether the incarcerated party has received adequate notice of the proceedings, has had an opportunity to respond and participate, and to determine “whether counsel is necessary in matters allowing for the appointment of counsel to assure that the incarcerated party’s access to the court is protected.”  Id. at (E).

Failure to abide by the procedural requirements of Rule 2.004 has, however, merely been subjected to a harmless error standard of review. See Bliesener v. Vega (In re M.V.), No. 264226, 2006 WL 859721, at *3 (Mich. Ct. App. Apr. 4, 2006).  Thus, where a party has failed to attend a parental termination proceeding by telephone because the party was not properly notified, Michigan courts have held that even assuming a constitutional error occurred, “respondent’s participation would not have affected the outcome of the proceedings.” Id.; In re McBride, Nos. 282062, 282243, 2008 WL 2751233, at *2 (Mich. Ct. App. July 15, 2008) (subjecting harmless error standard to violation of MCR 2.004); but see In re McBride, 766 N.W.2d 857, 863-64 (Mich. 2009) (Corrigan, J., dissenting) (stating that the remedy for violating MCR 2.004 should be reversal).