Right to counsel

Generally

In a proceeding alleging abuse or neglect, the court must appoint a lawyer-guardian ad litem to represent the child. Mich. Comp. Laws § 722.630; 712A.17c(7); In re Rood, 763 N.W.2d 587, 599 n.21 (Mich. 2009) (applying Mich. Comp. Laws 712A.17c to termination proceedings); see also Mich. Ct. R. 3.915(B)(2)(a).  Section 712A.17d details the attorney’s role. (providing that “[a] lawyer-guardian ad litem’s duty is to the child, and not the court.”).

The child may not waive the assistance of the lawyer-guardian ad litem. Mich. Comp. Laws 712A.17c(7).  If the lawyer-GAL determines that the child’s wishes conflict with that of the lawyer-GAL (L-GAL), the court is authorized to appoint an attorney for the child if the court determines the child is sufficiently mature.  Mich. Comp. Laws 712A.17d(2); see also Mich. Ct. R. 3.915(B)(2)(b).

Standard on appeal where conflict of interest alleged

In examining whether the trial court erred in failing to appoint independent counsel for the child due to an alleged conflict between the child’s wishes and L-GAL’s recommendations, appellate courts tend to apply the abuse of discretion standard. See e.g., In re Smith, No. 286249, 2009 WL 103712 at *2 (Mich. Ct. App. Jan. 15, 2009) .  This appears to be true unless the party failed to raise the issue below, in which case the plain error standard is used. See In re Walters/Atkins Jr., No. 370371, 2024 WL 4500974 (Mich. Ct. App. Oct. 15, 2024).

Extent of conflict required to warrant independent counsel

Where the L-GAL advocates, at least in-part, for an outcome that coincides with wishes occasionally expressed by the minor, the court may conclude that any conflict between the child’s wishes and L-GAL’s recommendation was not significant enough to warrant appointment of independent counsel.  In In re Walters/Atkins Jr., an unpublished decision from the Court of Appeals, a mother appealed the termination of her parental rights, arguing that the trial court should have considered whether independent counsel was necessary for HW, her 16-year-old son. No. 370371, 2024 WL 4500974 (Mich. Ct. App. Oct. 15, 2024).

Because mother did not raise the issue of independent counsel below, the appellate court applied the plain error standard.  It also noted that although “[g]enerally … a person does ‘not have standing to assert constitutional or statutory rights on behalf of another person[]'” (quoting In re HC, 781 N.W.2d 105, 115 [Mich. Ct. App. 2009]), it would review the claim for “purposes of completeness”. Walters/Atkins Jr., 2024 WL 4500974 at *3.  According to HW’s L-GAL, HW had at times expressed a desire to reunify with his mother, but he also expressed a desire to seek independent living.  The GAL expressed their belief that reunification was not in HW’s best interest and proposed permanency outcomes such as Another Planned Permanency Living Arrangement (APPLA) or guardianship as alternatives to termination.  Based on these facts, the appellate court concluded that HW’s position “did not significantly differ from the position of the L-GAL.”

It also reasoned that the mother had failed to demonstrate how the failure to appoint independent counsel for HW was “outcome-determinative”, since “[e]ven if HW had independent counsel who argued that termination was not in HW’s best interests, the trial court would still have conducted the same statutory-ground and best-interest analyses, considering the record already established that, at times, HW wanted to reunify with respondent and did not want to be adopted.” Id. at *3.

Ineffective assistance claims on child’s behalf

Finally, it is unclear who can raise an ineffective assistance claim on behalf of a child.  It seems that parents are not permitted to do so. See In re HC, 781 N.W.2d 105, 115 (Mich. Ct. App. 2009) (“Generally, persons do not have standing to assert constitutional or statutory rights on behalf of another person.”).  In In re Knipp, a father asked the appellate court to reconsider this stance and depart from HC.  Knipp, No. 368780, 2024 WL 2494747 (Mich. Ct. App. May 23, 2024).  However, the Knipp court rejected father’s contention that the court’s previous holdings on this issue “preclude the raising of any ineffective-assistance-of-counsel claim on behalf of a child, because no one can raise the claim for the child and the child cannot raise it for himself.”  The court reasoned:

[T]here are statutory requirements with which an LGAL must comply. See MCL 712A.17d. These statutory requirements serve as a safety valve to ensure that LGALs effectively represent the children for whom they are appointed. Further, there is nothing preventing parties from raising concerns with the trial court over an LGAL’s conduct or compliance with statutory requirements; a party is simply prohibited from asserting on behalf of the child that the LGAL provided constitutionally-defective representation that resulted in prejudice to the child. Accordingly, we decline to declare a conflict with In re H.R.C. or otherwise depart from established precedent.

Knipp, 2024 WL 2494747 at *4.