Appeal Filed By Attorney Dismissed For Not Being Pursued By ‘Aggrieved Party’

The Michigan Court of Appeals has ruled that it did not have jurisdiction to hear the appeal in a child-welfare case because trial counsel filed the appeal, and not the father whose parental rights were terminated.

The Wayne County Circuit Court in In re Farris/White, Minors (Docket No. 357743) terminated the respondent-father’s parental rights under MCL 712A.19b(3)(b)(i). The respondent’s attorney then completed the necessary forms to appeal the decision, including a request for appellate counsel. The argument on appeal was that caseworkers did not make “any type of real effort or even a reasonable effort” to contact and locate the respondent, which is why he did not participate in the trial court’s termination proceedings.

The Court of Appeals dismissed the appeal on its own motion, holding it was not filed by an “aggrieved party” as required by MCR 7.203(A). Rather, trial counsel initiated the appeal “by requesting that respondent be appointed appellate counsel,” the appeals court said in a published and binding opinion written by Judge Thomas C. Cameron, joined by Judge Mark T. Boonstra.

Judge Amy Ronayne Krause concurred with the case dismissal, but not because the Court of Appeals lacked jurisdiction. “I would dismiss … for failure to pursue this appeal in conformity with the court rules,” she said. “I would conclude that appellate counsel here clearly had the implied authority to file the appeal in this matter.”

According to Lansing appellate attorney Liisa Speaker, the Court of Appeals ruling will likely have implications beyond child-welfare cases. “The ruling is, in part, based on the fact that the attorney filed a request for appellate counsel and not the client. And so the court says there was not jurisdiction. Attorneys are always filing stuff for their clients. And in fact, in child welfare cases, the county actually files the appeal - not the attorney.”

‘Unauthorized’ Request

The Court of Appeals began its analysis by questioning, on its own, whether it had jurisdiction to hear the case, even though jurisdiction was not being challenged. “A court is, at all times, required to question sua sponte its own jurisdiction,” the appeals court noted.

The Court of Appeals pointed out that MCR 7.203(A)(2) says the court has jurisdiction “of an appeal of right filed by an aggrieved party” from “[a] judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule.”

The appeals court also noted that: 1) MCR 3.993(A)(4) says an order terminating parental rights is an order appealable by right and 2) MCR 7.202(4) defines “filing” as “the delivery of a document to a court clerk and the receipt and acceptance of the document by the clerk with the intent to enter it in the record of the court.”

The Court of Appeals continued by explaining that the trial court order appointing appellate counsel constituted “a timely filed claim of appeal” and the trial court is responsible for submitting that order to the appeals court. As a result, the claim of appeal is filed by the trial court, the appeals court said. “Consequently, the jurisdictional issue here is whether ‘an aggrieved party’ initiated the appellate process by requesting appellate counsel.”

Next, the Court of Appeals cited Grace Petroleum Corp v Public Service Comm’n, 178 Mich App 309 (1989), for the proposition that an appeal can only be taken by parties who are affected by the judgment being appealed. “A party is aggrieved by a judgment or order when it operates on his rights and property or bears directly on his interest,” the appeals court said.

The Court of Appeals then turned to the facts of the present case, pointing out that trial counsel initiated the appeal by requesting appointed counsel on his client’s behalf. “However,” the appeals court said, “the record is clear that trial counsel’s request for appointed counsel was not made at the direction of respondent. Specifically, after the referee concluded that statutory grounds existed to exercise jurisdiction, that petitioner had established by clear and convincing evidence that statutory grounds existed to support termination of respondent’s parental rights, and that termination was in the children’s best interests the referee informed respondent’s counsel … ha[d] seven days to ask a judge to review this hearing and … also ha[d] 14 days to appeal the termination of parental rights to the Michigan Court of Appeals and appellate counsel can be provided if needed or requested. … Respondent’s counsel then executed a request for appellate counsel ‘on behalf of’ respondent. After the trial court adopted the referee’s findings of fact and conclusions of law, the trial court appointed appellate counsel to represent respondent. The trial court submitted the ‘Claim of Appeal and Order Appointing Counsel’ and other required documentation to this Court, and appellate proceedings commenced.”

Based on the foregoing, “we conclude that ‘an aggrieved party’ did not file the request for appellate counsel,” the Court of Appeals said. “Instead, respondent’s trial counsel initiated the appeal by requesting that respondent be appointed appellate counsel. From there, appellate counsel was appointed and the appeal as of right was filed by the trial court.”

Although an attorney “often acts as his client’s agent,” the record in this case was “clear” that counsel did not file the appeal at the client’s directive, the Court of Appeals said. “Indeed, trial counsel readily acknowledged that he had not been in communication with respondent for several months at the time he filed the request for appellate counsel. Under these circumstances, the court should have rejected the unauthorized request for appellate counsel.”

Therefore, “[b]ecause we lack jurisdiction, we must dismiss the instant appeal,” the Court of Appeals concluded. 

‘Implied Authority’

Judge Krause, in her concurrence, pointed out that appeals are often filed and pursued by an attorney, who acts as an agent for the client (the aggrieved party).

“Because this appeal was filed by an attorney who was appointed on behalf of respondent for the express purpose of appealing from the trial court’s decision, in combination with the jurisdictional nature of timing requirements and the commonality of attorneys claiming appeals on behalf of their clients, I would conclude that appellate counsel here clearly had the implied authority to file the appeal …,” she wrote.

Judge Krause said she understood why the majority ruled that appellate counsel should not have been appointed. “Because respondent did participate at one point and was aware that trial counsel had been appointed on his behalf, he may have been entitled to assume that his trial counsel would stay the course despite respondent’s absence. … However, notwithstanding respondents’ right to representation, respondents bear some responsibility for pursuing that right, and that right may be waived through respondents’ conduct. … By the time appellate counsel was appointed, respondent had clearly waived any right to such appointment.”

“Nevertheless,” Judge Krause continued, “it is commendable that the trial court and the involved attorneys sought to protect respondent’s rights by appointing appellate counsel and filing this appeal. Furthermore, critically, the appointment actually occurred. Having been appointed, whether rightly or wrongly, appellate counsel necessarily had the implied authority to claim an appeal by right on behalf of respondent, even in the absence of express direction from respondent. Therefore, I consider it irrelevant whether the appointment was proper, and I would conclude that this appeal was ‘filed by an aggrieved party’ within the meaning of MCR 7.203(A).”