Appeals Court: No Appointed Counsel For Mom In Custody Case

 The Michigan Court of Appeals has denied a mother’s request for appointed counsel in her child-custody case, declining to find that her custody proceeding was “inextricably intertwined” with her child-protective proceeding so as to be considered a “stage” of that proceeding.

The plaintiff-mother in Jendrusik v Marine (Docket No. 359502) was involved in both a child-custody case and a child-protective (neglect) case. She had been appointed counsel in the neglect proceeding. The plaintiff and the amicus curiae, Legal Services Association of Michigan,

claimed she was also entitled to appointed counsel in the custody case because the two proceedings were so closely intertwined.

The Court of Appeals rejected this argument.

“[T]he issue whether the right to counsel should attach to certain custody proceedings that become ‘inextricably intertwined’ with a child-protective proceeding – the result of which is ultimately challenged as outcome determinative and detrimental to a parent – need not be resolved in this case challenging only the order entered in the custody matter,” the Court of Appeals said.

Judges Brock A. Swartzle, Mark J. Cavanagh and James Robert Redford were on the panel that issued the unpublished opinion.

Background

The plaintiff and the defendant-father shared joint physical custody of their child, AM, and the plaintiff had sole legal custody. Child Protective Services (CPS) was contacted after it was alleged the plaintiff was neglecting one of her children (EJ), who had required hospitalization after birth. It was later discovered the plaintiff had untreated mental health issues and was self-medicating with substances. As part of a safety plan, AM and EJ were placed in the care of their maternal grandparents.

The Wayne County trial court subsequently granted a petition filed by the Department of Health and Human Services (DHHS) to place the children in care and exercise jurisdiction over them. AM was placed in the defendant’s care, while EJ remained with her maternal grandparents.

Both parties pled to the allegations in the petition and “were ordered to comply with a treatment plan. When the defendant completed his treatment plan, the caseworker recommended that he “obtain a custody order so that the trial court could terminate jurisdiction” over AM. The plaintiff, however, continued to struggle with substance abuse and mental health issues.

The defendant then filed a motion to modify custody. At an October 2019 hearing in the child-protective proceeding, the plaintiff filed a motion to terminate jurisdiction, arguing that “the intent of the whole planet” seemed to be that AM remain with the defendant. The trial court denied the plaintiff’s motion, citing the pending custody motion.

The custody case was subsequently transferred from the trial court’s domestic division to the juvenile division. The trial court informed the plaintiff, who had been appointed counsel in the child-protective proceeding, that she had to obtain her own counsel in the custody proceeding. When the custody proceeding began, the plaintiff participated via Zoom and indicated that she had retained an attorney, although an attorney never filed an appearance in the case. An attorney who was retained previously to represent the plaintiff in a limited capacity later secured an adjournment of the proceedings. That attorney, however, was permitted to withdraw due to the plaintiff’s lack of cooperation. Thereafter, the plaintiff represented herself.

In November 2021, the trial court held that AM’s established custodial environment was with the defendant. The trial court weighed the best interest factors and ruled that a majority of the factors favored the defendant. However, the trial court declined to issue a custody ruling until AM was interviewed by the court. Ultimately, the trial court awarded the defendant sole legal and physical custody of AM, with the plaintiff getting supervised parenting time. The order was issued under the case number associated with the child-protective proceeding. The trial court further ruled that the permanency planning goal of reunifying AM with a parent was achieved and the court terminated its jurisdiction over AM.

The plaintiff appealed.

No Appointed Counsel

On appeal, the plaintiff and amicus curiae argued that she was entitled to appointed counsel in the custody case because it was so intertwined with the neglect proceeding that it should be considered a “stage” of the neglect case under MCL 712A.17c(4)(a). That statute says:

“(4) In a proceeding under section 2(b) or (c) of this chapter, the court shall advise the respondent at the respondent's first court appearance of all of the following:

(a) The right to an attorney at each stage of the proceeding.”

In its analysis, the Court of Appeals first noted the plaintiff was not challenging the outcome of the child-protective proceeding. Rather, the plaintiff “is only challenging the outcome of the custody proceedings; thus, this is not the proper case to determine the issue whether a custody proceeding can be so intertwined with a child-protective proceeding that the right to counsel attaches with regard to the custody proceeding.”

The plaintiff had sole legal custody of AM and shared joint physical custody of AM when the child-protective proceeding began, the Court of Appeals observed. “AM was removed from plaintiff’s care and custody because of her inability to properly parent AM as a result of untreated mental health issues and substance abuse. It is undisputed that plaintiff was entitled to, and received, court-appointed counsel with respect to the child-protective proceeding. During the child-protective proceeding, defendant - who successfully completed his treatment plan - sought a change of custody of AM, i.e., a new custody order.”

The Court of Appeals continued by pointing out the trial court’s custody order awarded the defendant sole legal and physical custody of AM and granted the plaintiff weekly, supervised parenting time. “Once AM was determined to be properly protected in the placement with a parent, the purpose of the child-protective proceeding was achieved and jurisdiction over AM was terminated. … And plaintiff does not challenge the outcome of the child-protective proceeding, i.e., the termination of jurisdiction over AM. That is, plaintiff does not argue that the child-protective proceeding was improperly concluded. Rather, plaintiff only challenges the outcome of the custody proceedings and there is no right to court-appointed counsel in custody proceedings.”

Although the plaintiff argued the custody case “became the mechanism through which the trial court and DHHS resolved [the] neglect case,” she did not challenge the outcome of the child-protective proceeding, the Court of Appeals emphasized. “And plaintiff’s parental rights were not terminated in the child-protective proceeding. In other words, plaintiff retained her rights to parent AM. … The result of the resolution of the custody matter was simply that the child-protective proceeding was no longer necessary - the child was safe. Accordingly, the issue whether the right to counsel should attach to certain custody proceedings that become “inextricably intertwined” with a child-protective proceeding - the result of which is ultimately challenged as outcome determinative and detrimental to a parent - need not be resolved in this case challenging only the order entered in the custody matter.”

In conclusion, the Court of Appeals affirmed the custody order. “In so holding, however, we caution the trial court that it must confirm that motions and orders have the appropriate caption and case number when it consolidates different matters concerning the same family. … Here, the case number on the … custody order bears the case number of the child-protective proceeding. We therefore remand to the trial court for the ministerial task of correcting the caption on the … custody order.”