Michigan Supreme Court Found Respondent- Father's Counsel Provided Ineffective Assistance

In re Bourbeau, Minors

• Opinion Published: 02/11/2022

• Judges: Justice McCormack, Justice Zahra, Justice Viviano, Justice Bernstein, Justice Clement, Justice Cavanagh, Justice Welch  

• Docket No. 163731

• Michigan Supreme Court

Holding: The Michigan Supreme Court vacated the judgment of the Court of Appeals and remanded the case for a new appeal. The Supreme Court also ordered the Court of Appeals to remand this case to the Oakland Circuit Court and directed that Court to appoint counsel to represent the Respondent-Father in the Court of Appeals. The Michigan Supreme Court found that the Respondent- Father's counsel provided ineffective assistance by failing to cite to the record to support the claims being asserted, citing incorrect legal standards in support of those claims, and failing to raise potentially meritorious claims. 

Facts: Respondent-Father and the Mother are the parents of AJB and CMB. DHHS alleged the Respondent-Father and MB engaged in incidents of domestic violence in the presence of AJB, that Respondent-Father had verbally and physically abused AJB, and that there had been inadequate supervision of CMB that led to injuries to CMB. The Mother ultimately agreed to the termination of her parental rights and is not involved in any legal actions moving forward.  

The Trial Court concluded by a preponderance of the evidence that termination of Respondent-Father's parental rights was in the children’s best interest factors and additional efforts for reunification shall not be made.

The Court of Appeals held the Trial Court did not clearly err in finding that termination of parental rights was in children’s best interests.

Respondent-Father filed application with the Michigan Supreme as an in pro per claiming the issues listed below.  

Key Appellate Rulings:

1. Key Issues for Court of Appeals to Reconsider with new Appellant’s Brief: 

   1. The Trial Court erred by violating deadline requirements outlined in MCR 3.977(I)(1); subsequently, the Respondent-Father's state and federally constitutionally protected Due Process rights were violated. Following the delayed proceedings, Respondent-Father was never advised of his appellate rights or the appeal deadline.  

      • Appellant counsel received over 4000 trial transcript pages less than one-week prior to the Appellant Brief deadline.

   2. The Trial Court deprived the Respondent-Father of his state and federal constitutionally protected Equal Protection and Due Process rights by proceeding with the trial when the Respondent-Father did not have representation by a licensed attorney.

   3. The Respondent-Father's trial lawyer was suspended during critical stages of the child protective proceedings that ultimately concluded with termination of parental rights following failure to pay state bar membership fees.  

   4. The Trial Court deprived the Respondent-Father of his state and federal constitutionally protected Equal Protection and Due Process rights by not adhering to the Michigan Rules of Evidence or MCR 3.972(C) regarding hearsay in determining statutory bases exist to terminate Respondent-Father's parental rights.

2. New Issues for Court of Appeals to Consider upon Briefing: 

1. The initial allegations brought forth regarded events of domestic violence between Respondent-Father and Mother, but by the time the supplemental petition was filed, the Respondent-Father was either in the process of divorcing Mother or had divorced, and testimony showed Respondent-Father successful completion of alleged parenting deficits.

2. The Trial Court allowed impermissible Character evidence to be introduced after the trial commenced proceedings, violating court rules.  

   • MCR 3.977(F)(2): Parties shall disclose as detailed in MCR 3.922(A) at least twenty-one (“21”) days prior to the termination hearing and have rights to discovery consistent with that rule.  

Practice Tips: This case demonstrates how critical it is for trial counsel to properly advise clients about: (1) the right to appeal; and (2) how to timely request appointed appellate counsel. If those items are not done properly, the procedure changes significantly. If a parent timely requests appellate counsel (within 21 days of the termination order), then once the trial court appoints counsel, the trial court will also file the claim of appeal with the Court of Appeal’s and order the transcripts, and then the appellate attorney can wait for the transcripts to be produced. Once the transcripts are filed in the trial court, the appointed appellate attorney will have 28 days to file the Appellant’s Brief.

To contrast, if the trial attorney does not advise the parent of his appeal rights, then once the parent makes a late request for appointed counsel, the appointed appellate attorney only has 63 days from the termination order to file a delayed application. This deadline stays true even if the court reporter has not completed the transcripts. The appellate attorney is basically working in a vacuum to get something filed in the hopes of convincing the Court of Appeals to grant leave.