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.” Fam. Independence Agency v. Bowman (In re CR), 646 N.W.2d 506, 513 (Mich. Ct. App. 2001), overruled on other grounds, Dep’t of Hum. Servs. v. Laird (In re Sanders), 852 N.W.2d 524 (Mich. 2014).

As to nonoffending parents

In In re Williams, the Michigan Court of Appeals took up the question sua sponte of the failure to appoint counsel for a 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.” 779 N.W.2d 286, 298 (Mich. Ct. App. 2009) (per curiam).  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.

Standard applied on appeal where denial of counsel alleged

There is some ambiguity as to what standard applies on appeal where the appellant alleges that they were inappropriately denied their right to counsel.  Courts seem to fluctuate between the harmless and plain error standards. Compare In re Cooper, No. 291713, 2009 WL 2767749 (Mich. Ct. App. 2009) (unpublished) (trial court erred in failing to determine paternity of putative father early in child protective proceedings, where finding of paternity would have entitled putative father to counsel in proceedings; appellate court finds error harmless); In re McBride, Nos. 282062, 282243, 2008 WL 2751233, at *8-9 (Mich. Ct. App. July 15, 2008) (unpublished) (trial court failed to appoint counsel to incarcerated father during termination of parental rights proceedings based on errant belief that father had waived right to counsel; court of appeals holds error harmless); In re Williams, 779 N.W. 2d 286, 300 (Mich. Ct. App. 2009) (unpublished) (per curiam) (failure to appoint counsel for unaccused father was harmful error requiring reversal, given weak TPR case against him) with In re Mitchell, 773 N.W.2d 663, 663 (Mich. 2009) (reversing termination and finding plain error in the failure to timely appoint); n re Hudson, 763 N.W.2d 618 (Mich. 2009) [trial court committed reversible, plain error in failing to adequately advise respondent of her right to counsel and in failing to timely appoint counsel in violation of Mich. Comp. Laws 712A.17c(4) and (5)]; and In re Gaddis/Paul, Nos. 312041, 312049, 2013 WL 951104 (Mich. App. Feb. 28, 2013) (unpublished) (while court says denial of appointed counsel can be subject to harmless error, court’s error in allowing mother to proceed unrepresented in TPR proceeding after her counsel withdrew due to non-contact with mother “does not qualify as harmless because the decision effectively deprived Paul of her properly and timely-invoked right to assistance of counsel during a hearing in which the court terminated her parental rights. As Paul was required to present a complete defense in her case without the benefit of counsel, this error ‘affected the fundamental fairness of the proceedings”).

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.