Justices Order Appointment Of Appellate Counsel In Termination Case

The Michigan Supreme Court has ordered the Ingham County Circuit Court to appoint appellate counsel for the respondents in a termination of parental rights case, as well as filing claims of appeal for both respondents.

The Ingham County trial court terminated the respondents parental rights in In re Valdez-Drumm, Minors (MSC Docket No. 166192). Afterward, the trial court denied their requests for appointed appellate counsel. The respondents appealed that ruling and, in August 2023, the Michigan Court of Appeals ordered their appeal be dismissed for lack of jurisdiction because it was not timely filed.

The respondents then appealed to the Michigan Supreme Court. In a December 15, 2023 order, the justices vacated the decision to deny the respondents’ request for appointed appellate counsel and remanded the case to the trial court “for a redetermination of the respondents’ request for appellate counsel.” In its order, the high court said the trial court “shall make specific findings of fact regarding the respondents’ declaration of indigency and financial ability to retain appellate counsel and issue a written opinion, which shall be forwarded to the Clerk of this Court ….” Justice Brian K. Zahra and Justice David F. Viviano said they would deny leave to appeal in the case.

As instructed, the Ingham County trial court forwarded its written opinion to the Michigan Supreme Court. Upon consideration, the high court issued a second order in March 2024 and said that, in lieu of granting leave to appeal, “we VACATE the order of the Court of Appeals and REMAND this case to the Ingham Circuit Court to appoint appellate counsel and to file a claim of appeal for each respondent in accordance with MCR 3.993(D)(3), which shall constitute a timely filed claim of appeal for the purposes of MCR 7.204.”

Justice Kyra H. Bolden wrote separately “to explain why, given the unique circumstances of this case, I concur with this Court’s order.”

Justice Viviano issued a separate dissent, joined by Justice Zahra. “This Court now completes the error it made when it previously remanded this case to the trial court for a ‘redetermination’ of whether respondents were entitled to appointed counsel on appeal,” he said.

Justice Bolden’s Concurrence

“On the surface, this case appears to be a simple question of jurisdiction: the Court of Appeals dismissed as untimely respondents’ claim of appeal by right,” Justice Bolden wrote. “Underneath the surface, the record shows that indigent respondents were left to navigate a complex appellate process without the assistance of counsel to which they were entitled.”

In particular, Justice Bolden pointed out that Justice Viviano, in his dissent, stated there was no reason for the high court to question the “soundness” of the trial court’s indigency determination. “The record demonstrates otherwise,” she stated. “In their motions for appointment of appellate counsel, respondent-mother reported that she had zero income and respondent-father’s reported income was unclear and the handwriting nearly illegible. The trial court denied their motions without any findings to support why appellate counsel could not be appointed. Notably, as a practical matter, both respondents were previously found to be indigent, trial counsel was appointed to represent them for the duration of the case, and the court presided over the termination proceedings; thus, the court was likely aware of both respondents’ financial situations throughout the termination proceedings. I believe the record clearly provides a basis to question the denial of appointment of appellate counsel. Unsurprisingly, on remand, both respondents were found to be indigent.”

Moreover, when considering the trial court’s initial denial of appointed appellate counsel, “it is understandable that respondents struggled with seeking appellate review,” Justice Bolden observed. “The denial of appointed counsel seemingly led to the denial of any appellate review of the orders that terminated respondents’ constitutional rights to parent their children. Especially now that both respondents have been found to have been indigent, it seems likely that the erroneous decision denying the appointment of appellate counsel meaningfully affected the fairness of their attempt to appeal.”

In conclusion, Justice Bolden said she “agree[d] with this Court’s order to vacate the August 31, 2023 order of the Court of Appeals and to remand this case to the Ingham Circuit Court for the appointment of appellate counsel and for the filing of claims of appeal that shall be considered timely.”

Justice Viviano’s Dissent

Justice Viviano, joined by Justice Zahra, said in his dissent that he “did not join” the first MSC order and instead voted to deny leave “because the Court of Appeals correctly dismissed respondents’ claim of appeal in that court for lack of jurisdiction due to respondents’ failure to timely file their claim” under MCR 7.204(A)(1).

Further, “despite being told how to proceed by then Chief Judge GLEICHER - file a timely delayed application for leave to appeal in that court - respondents also failed to do so,” the justice noted.

“It is, of course, black-letter law that the time limits for filing a claim of appeal or application for leave to appeal are jurisdictional,” Justice Viviano wrote. “Yet without providing any legal authority, this Court’s prior order remanding to the trial court for a ‘redetermination’ of indigency was designed to let respondents circumvent these jurisdictional rules. And, if ignoring our own jurisdictional rules was not bad enough, the Court decided to do so without identifying any error in the lower courts’ holdings.”

The trial court “ruled that respondents were not entitled to court-appointed appellate counsel after correctly determining, based on the evidence submitted with the request, that respondents were not indigent,” the justice stated. “No one has seriously contended otherwise.”

However, “letting neither the law nor the facts get in the way of its desired outcome, this Court remanded to the trial court for a ‘redetermination’ of its prior ruling and required the trial court to ‘make specific findings of fact regarding the respondents’ declaration of indigency and financial ability to retain appellate counsel and issue a written opinion … within 60 days …,’” Justice Viviano said. The trial court “dutifully complied with this ukase, confirming in a tongue-in-cheek order that its prior ruling was correct based on the evidence presented, but determining that respondents are now entitled to a court-appointed lawyer based on newly submitted evidence.”

Rather than vacating “its lawless order,” the Michigan Supreme Court “now follows through on it by remanding this case to the trial court for the appointment of appellate counsel and the filing of a claim of appeal for each respondent under MCR 3.993(D), ‘which shall constitute a timely filed claim of appeal for the purposes of MCR 7.204,’” the justice said. “But the cases the Court cites do not support its irregular action in allowing these parties a third bite at the appellate apple.

Referencing the majority’s citation of Halbert v Michigan, 545 US 605 (2005), Justice Viviano explained the U.S. Supreme Court in Halbert “held that criminal defendants who enter a plea of nolo contendere in Michigan are entitled to appointed counsel when their application for leave to appeal in the Court of Appeals provides the ‘first-tier’ of appellate review.” Halbert, however, “does not purport to create any rights for respondents in termination-of-parental-rights cases,” he said. “And in any event, no one disputes that respondents were entitled to appointment of counsel if they were able to prove that they were indigent. … For these reasons, it is unclear why the majority even cites Halbert.”

Meanwhile, the other cases cited by the Michigan Supreme Court “are also inapt - they each remanded for a new appeal because each defendant lost an appellate right ‘through no fault of his own[,]” Justice Viviano observed, citing People v Anthony, 496 Mich 863 (2014), People v Hill, 501 Mich 949 (2018), and People v Nehmeh, 501 Mich 882 (2017). “The same cannot be said here, where respondents initially submitted financial information that was insufficient to establish indigency and, after that, failed to follow the clear direction from the Court of Appeals as to the filing of a delayed application for leave.”

The high court “should acknowledge its mistake and vacate its previous order,” Justice Viviano stated. “There is no legal support for waiving the jurisdictional requirements of the Court of Appeals for sympathetic litigants. Nor was there any reason to question the soundness of the trial court’s initial determination regarding indigency. Because there was no legal or factual support for the Court’s prior order, I do not believe it can serve as the foundation for the present remand order. Therefore, I respectfully dissent.”