Appeals Court Vacates Order Terminating Parental Rights Due to Improperly Serving Respondent
Approved for Publication: April 11, 2024 (Cavanagh, and K.F. Kelly and Rick)
Docket No. 367124
Lenawee Circuit Court
Holding: The Court of Appeals vacated the Trial Court’s order for termination of Respondent’s parental rights and remanded the case, as the Trial Court plainly erred when it went forward with the termination proceeding when the failure to serve Respondent was obvious, when it permitted Respondent’s attorney to withdraw from the case without providing Respondent with the opportunity to obtain other counsel, and where Respondent was entitled to a new hearing due to ineffective assistance of counsel.
Facts: In 2017, the Department of Health and Human Services (DHHS) petitioned the court to remove the minor child from Respondent’s care. Respondent entered a no-contest plea allowing the court to take jurisdiction over the child. The court ordered Respondent to participate in a case service plan. After about 11 months of reunification services, the child was returned to Respondent’s care with in-home services. Subsequently, the court terminated its jurisdiction and closed the case. Once the court dismissed the case, Respondent stopped participating in services.
About three years later, Children’s Protective Services (CPS) investigated Respondent again for similar conduct. When Respondent refused to cooperate with the investigation and participate in voluntary services, DHHS again petitioned the court to take jurisdiction over the minor child and remove him from Respondent’s care. After a jury trial, the court exercised jurisdiction over the child and ordered Respondent to participate in a treatment plan. Respondent refused to participate in services and was limited in her engagement in parenting time, so DHHS filed a supplemental petition seeking to terminate Respondent’s parental rights.
Respondent did not appear for the termination hearing, and after her absence was noted, her attorney sought and was granted withdrawal from the case. After DHHS took testimony from the foster care worker, the court found clear and convincing evidence to terminate Respondent’s parental rights. The court did not identify the statutory grounds on which it relied, but indicated that “at the very least, one statutory ground for termination” was established by clear and convincing evidence. The court also concluded that termination was in the child’s best interests.
Key Appellate Rulings:
A trial court lacks jurisdiction to terminate parental rights and should not proceed with a termination proceeding when it fails to personally serve a respondent with notice.
There was no evidence that Respondent was personally served with the summons for the termination proceeding or that the court properly presented with an appropriate motion for alternate service. The foster care work testified Respondent had received the summons and the petition to terminate her parental rights, but Respondent was not able to be there in person to meet the caseworker. After filing an affidavit to locate absent parent, two more proofs of service were filed with the Trial Court, but neither confirmed service of process on Respondent. The Trial Court went forward with the termination hearing in Respondent’s absence and allowed Respondent’s counsel to withdraw from representation. As Respondent was not served in accordance with MCL 712A.13 requirements, the Trial Court lacked jurisdiction to terminate her parental rights and erred when it proceeded with the termination hearing.
When an attorney seeks to withdraw from the representation of a client, both the attorney and the court have an obligation to reasonably inform the client and provide an opportunity for the client to obtain other counsel. The Trial Court must also determine whether the attorney had good cause to withdraw.
The record established that Respondent intended to contest the request to terminate her parental rights with her trial counsel's help. Respondent attended and participated in the majority of the court hearings. There was no indication that her absence at the termination hearing evidenced her intent to relinquish or waive her right to counsel and not present a defense to the supplemental petition seeking termination of her parental rights.
Because counsel in this case sought to withdraw without first attempting to contact the client, counsel’s performance fell below an objective standard of reasonableness and Respondent was prejudiced by the withdrawal.
Utilizing the framework for determining whether counsel was ineffective as espoused in In re Martin, 316 Mich App 73; 896 NW2d (2016), the Court of Appeals held counsel’s performance in this matter fell below an objective standard of reasonableness, as counsel did not “attempt [] to ascertain respondent’s location or [] investigate [] whether she was properly served with the summons and the supplemental petition.”
Respondent was also prejudiced by the Trial Court’s and counsel’s actions. At a prior hearing, Respondent’s counsel signaled an intent to present a defense that DHHS failed to make reasonable efforts to accommodate Respondent’s alleged challenges in complying with services because of injuries she had sustained. Because Respondent’s trial counsel withdrew from the termination hearing, this defense did not occur. The Trial Court did not provide Respondent with an opportunity to obtain other counsel, and it did not determine whether the attorney had good cause to withdraw. Thus, the Trial Court plainly erred in permitting Respondent’s attorney to withdraw.
