Right to counsel

A plurality of the Michigan Supreme Court found a state due process right to counsel for indigent parents in termination of parental rights cases.  In Reist v. Bay Circuit Judge, decided five years prior to Lassiter, a three-justice plurality opinion found a right to counsel in TPR proceedings under both the federal and state constitutions: “Because of the nature of parental rights termination proceedings and of the basic, fundamental nature of the parental relationship in our society, the Due Process Clause requires assignment of counsel at public expense for an indigent for hearings when the state seeks to terminate his parental rights.”  See 241 N.W.2d 55, 64 (Mich. 1976) (plurality opinion).  In reaching its decision, the court emphasized the fact that “[t]he state is the moving force in neglect and termination proceedings.”  Id. at 63.  “That this is a confrontation between the state and an individual is ‘a circumstance of great importance in determining a standard of fairness.’” Id. (quoting Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 796-97 (Me. 1973)).  The court stated that the parental interest was “of basic importance in our society,” that the parent-child relationship “occupies a basic position in this society’s hierarchy of values,” that “the integrity of the family unit has been zealously guarded by the courts,” and that a TPR proceeding is “one of the most drastic actions the state can take against its inhabitants.”  Id. at  62-63 & n.23.  Therefore, “any legal adjustment of  [parent and child’s] mutual rights and obligations affects a fundamental human relationship.”  Id. at  62.  The court also recognized that the constitutional interest in liberty “denotes not merely freedom from bodily restraint but also the right of the individual to . . . establish a home and bring up children[.]”  Id.

Although Reist did not formally utilize the traditional balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (which includes the risk of erroneous deprivation), the court analyzed many of the risks of error involved in pitting an unsophisticated and indigent parent against the vast resources of the state in a TPR case:

Parents most often involved in neglect and termination proceedings are usually the least equipped, it terms of intellectual and emotional resources, to respond in such proceedings.  “The indigent are frequently the least able to cope with government in its official functions … The case at bar was routine for the welfare workers and other juvenile court staff.  For the indigent mother, however, the entire proceedings were incomprehensible.”

Id. at 63-64 (citations omitted).  The court also noted that “[s]tudies indicate that termination of parental rights occurs less frequently when parents are represented by counsel.”  Id. at 64 & n.26 (citing Note, Child Neglect: Due Process for the Parent, 70 Colum. L. Rev. 465, 476 (1970)).

However, there is questionable precedential value to the above discussion of a constitutional right to court-appointed counsel at termination proceedings, given that it was part of a three-justice plurality opinion.  Two other justices concurred in the result, but disagreed with the necessity of a constitutional analysis.  See id. at 67 (Coleman & Fitzgerald, JJ., concurring).  The concurring justices described the plurality’s constitutional analysis as “dicta concerning an unauthorized issue” that “presents a broad and indistinct vista of ‘liberties’ to be protected and financial equalizing to be supplied.”  Id. at 69.  Another justice did not participate in the decision, see id. at 67, and the remaining justice dissented, concluding that no constitutionally protected right existed.  Id. at 70 (Lindemer, J., dissenting).

Nevertheless, some Court of Appeals decisions have cited Reist directly or indirectly for the proposition that the due process and/or equal protection clauses of the state and/or federal constitutions provide a right to counsel.  In re Powers Minors, 624 N.W.2d 472, 477 & n.10 (Mich. Ct. App. 2000) (addressing both due process and equal protection); see also In re EP, 595 N.W.2d 167, 175 (Mich. Ct. App. 1999) (“Although 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.”), overruled on other grounds by In re Trejo, 612 N.W.2d 407 (Mich. 2000); Matter of Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986) (“The right to appointed counsel at such [termination] proceedings is . . . a fundamental constitutional right guaranteed by the equal protection clauses of the United States and Michigan Constitutions.”); but see In re Osborne, 603 N.W.2d 824, 828 & n.4 (Mich. Ct. App. 1999) (questioning whether the Michigan Constitution guarantees the right to court-appointed counsel for indigent respondents in termination proceedings, and citing Sanchez and Reist).

Furthermore, due process protections have been relied upon in various appellate decisions related to, for example, waiver of counsel and notice of the right to counsel for parents. See e.g., In re Cobb, 344 N.W.2d 12 (1983) (mother in termination of parental rights case sought to withdraw her waiver of counsel, but lower court refused to reappoint; appellate court reversed and relied on the fact that (a) defendants in criminal cases are allowed to withdraw their waiver of counsel at any time; and (b) the case involved “the constitutional guarantee of due process”, citing to Reist); In re McKissack, No. 262816, 2006 WL 173174 (Mich. Ct. App. 2006) (unpublished) (per curiam) (in TPR case, incarcerated parent not given notice of proceedings until final termination trial; parent argued violation of due process, which was argument of unpreserved error; court finds violation of due process requiring reversal because it was “plain error”, applying standard from People v Carines, 597 N.W.2d 130 (Mich.1999)); In re Clemons, No. 281004, 2008 WL 3851592, at *3 (Mich. Ct. App. 2008) (unpublished) (per curiam) (parent raised unpreserved error of lower court’s failure to advise her of right to counsel; court applies Carines; court later says that while harmless error standard applies, ” This error [] alone …. requires reversal because the error affected the fundamental fairness of the proceedings. It is axiomatic that it is fundamentally unfair to deprive a parent of their liberty interest in the care and custody of their child when the parent is not represented by counsel at the termination proceedings and has not been advised of their right to counsel or appointed counsel.”)  The Supreme Court of Michigan’s frustration with the trial courts in these cases has appeared to spill out in a few recent cases reversing trial court errors. Most recently, in In re Rood, this Court reminded that even though a parent may have been less than the “ideal parent”, “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.  Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. . . .” In Re Rood, 763 N.W.2d 587 (Mich. 2009) (quoting Santosky, 455 U.S. at 753-754).  See also In re Brock; 499 N.W.2d 752, 756 (1993) (“It is well established that parents have a significant interest in the companionship, care, custody, and management of their children. This interest has been characterized as an element of ‘liberty’ to be protected by due process.”)).

Note: A few courts have even said the federal due process clause requires counsel in termination proceedings, a statement clearly contrary to Lassiter. See e.g., In re Gaddis/Paul, Nos. 312041, 312049, 2013 WL 951104 (Mich. Ct. App. Feb. 28, 2013) (unpublished) (“This Court has explicitly recognized that the United States Constitution guarantees a right to counsel in parental rights termination cases … [and] that the constitutional right of due process confers on indigent parents the right to appointed counsel at hearings that may involve the termination of their parental rights.”)

Right to transcripts and counsel on appeal

Michigan’s closest application of the open courts doctrine as a basis for appointing counsel in civil proceedings also occurred in Reist, discussed above.  After finding a right to counsel, the court next analyzed “whether an indigent parent is entitled at public expenses to transcripts of neglect and termination proceedings and to assigned counsel on the first appeal as of right.” Reist, 241 N.W.2d at 64.  In what can only be deemed a blended analysis, borrowing from general due process, equal protection, and right of access principles, the Michigan Supreme Court noted that “the transcript requirement is a financial burden well beyond the capacity of an indigent person.  Where transcripts are necessary to perfect an appeal, unless the state provides them without charge the indigent parent is denied all access to the appellate process.”  Id. at 65 (emphasis added).  Relying on and quoting heavily from an Arizona Supreme Court decision, the Reist court stated:

Persons of means can fully exercise the statutory and constitutional avenues of appeal.  The failure to provide poor persons an effective and meaningful appeal of a decision terminating their parental rights through assignment of appellate counsel is a particularly invidious deprivation and distasteful reminder of their poverty.  ‘[I]t is now fundamental that, once established, these avenues [of appeal] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.  In failing to provide the means by which this class of persons can obtain meaningful and adequate appellate review ‘an unconstitutional line has been drawn between rich and poor.’ Having concluded that the right to assigned counsel in parental rights termination proceedings is process due the indigent parents, we also conclude that indigent parents are entitled to meaningful and adequate access to the appellate process and that this right can only be achieved through representation by counsel and providing counsel with necessary transcripts.  The Equal Protection Clause requires that indigent parents be provided counsel for prosecuting the first appeal as of right to the circuit court and such transcripts as counsel requires.

Id. (citations and quotations omitted).  Thus, at least where a fundamental right is implicated and the right to counsel is afforded at the trial level, the right to civil appointment of counsel in related appellate proceedings is supportable at least partially under the theory that the failure to provide counsel deprives the indigent party of meaningful access to the appellate process.