MSC Justices: Parents In Contested Guardianships Need Access To Court-Appointed Counsel

The Michigan Supreme Court has let stand an appeals court decision holding that a grandmother should not have been appointed full guardian of her grandchildren.

After hearing oral arguments in In re Guardianship of Orta, Minors, the Michigan Supreme Court denied the grandmother’s appeal. In its order, the high court said the issues presented did not need further review.

The most interesting aspect of the order is Justice Megan K. Cavanagh’s concurrence, which Justice Elizabeth T. Clement and Justice Elizabeth M. Welch joined. The three justices agreed that the Orta case demonstrates why parents in guardianship cases need access to legal counsel.

“What transpired in this case is troubling,” Justice Cavanagh wrote. “Despite a guardianship’s intrusion into a parent’s fundamental rights, in this state parents are not entitled to the assistance of counsel while navigating a guardianship proceeding. … [U]nlike a parent in a child protective proceeding or a termination of parental rights case, a Michigan parent in a guardianship proceeding has no right to the assistance of counsel by virtue of a statute or court rule. Nor do they have a recognized constitutional right to such assistance.”

According to Justice Cavanagh, the guardianship in Orta was imposed against the parent’s will, in violation of the guardianship statute and the parent’s fundamental rights. “At minimum, I believe the assistance of a court-appointed attorney in a contested guardianship case is necessary to safeguard parental rights and ensure that a guardianship is entered using only fundamentally fair procedures,” she wrote, urging the Michigan Legislature to address the issue.

Justice David F. Viviano dissented, saying that he would have granted leave so the questions presented could have been considered.

Lower Court Rulings

The petitioner-mother had two children. She was having financial troubles, so she and the respondent – the petitioner’s mother/children’s grandmother – agreed the children would live with the respondent for a period of time, until the petitioner could get back on her feet financially.

Unbeknownst to the petitioner, the respondent filed a temporary guardianship petition in the Delta County Probate Court. The Probate Court ultimately ruled that the statutory requirements for imposing a guardianship were met and appointed the respondent as the children’s full guardian. The petitioner then filed two petitions to terminate the guardianship, which the Probate Court denied. Meanwhile, the Probate Court ordered the Michigan Department of Health and Human Services (DHHS) to conduct annual reviews and twice continued the guardianship without conducting a hearing. The petitioner did not have legal counsel throughout the Probate Court proceedings.

The petitioner appealed, arguing the Probate Court did not have jurisdiction to appoint the respondent as guardian because the requirements in the guardianship statute, MCL 700.5204(2)(b), were not met. That statute says, in part: “… (2) The court may appoint a guardian for an unmarried minor if any of the following circumstances exist: … (b) The parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor's care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed.”

In an unpublished opinion, In re Guardianship of Orta, Minors, Michigan Court of Appeals Judges Mark T. Boonstra, Jonathan Tukel and Anica Letica scrutinized the guardianship statute requirements, emphasizing the original agreement between the parties involved a temporary living arrangement for the children. The Court of Appeals explained in its decision: “Initially, petitioner asked respondent to care for petitioner’s children for about one month. There is no dispute that respondent agreed to this temporary arrangement. And, at the initial hearing on the guardianship, petitioner testified that she and respondent spoke after the month had passed and agreed that respondent would continue to care for petitioner’s children until petitioner moved into her apartment. Again, this was a temporary arrangement and petitioner leased her apartment effective October 1, 2015. Because a necessary statutory requirement was lacking, the trial court erred in appointing respondent the children’s guardian.”

The Court of Appeals vacated the Probate Court’s orders and remanded the case for further proceedings - namely, to reunite the children with their mother.

The respondent appealed. The Michigan Supreme Court granted leave to appeal and invited the State Bar of Michigan Family Law Section and the State Bar of Michigan Children’s Law Section to file amicus briefs. The high court heard oral arguments in the case earlier this year.

Justices: Struggling Parents Need Lawyers

The Michigan Supreme Court, in an August 27, 2021, order, declined to hear the respondent’s appeal, thereby letting the Court of Appeals ruling stand.

In her concurrence, Justice Cavanagh pointed out the petitioner was “financially struggling” and had represented herself throughout the Probate Court proceedings. “[T]his case illustrates problems that may arise because this state does not afford parents the right, statutory or otherwise, to the assistance of counsel at guardianship proceedings. … This guardianship should not have been entered in the first place.”

As a litigant representing herself, the petitioner “was seemingly unaware that she had a winning issue on appeal,” Justice Cavanagh observed. “In fact, there is no indication in the record that petitioner was even informed by the trial court that she could appeal the initial guardianship decision. A little over a year later, petitioner attempted to have the guardianship terminated, again without an attorney. This proved unsuccessful, and again petitioner did not attempt to appeal the trial court’s denial order. Petitioner was finally able to retain a lawyer to assist her in filing a petition to terminate the guardianship in July 2018 - nearly three years after the trial court erroneously granted respondent’s guardianship petition. The trial court denied this second petition to terminate the guardianship, but this time with the continued assistance of counsel petitioner did file an appeal. In February 2020, almost five years after the ‘temporary’ living arrangement began, the Court of Appeals recognized the trial court’s original error, vacated the guardianship orders, and returned the children to petitioner.”

According to Justice Cavanagh, the Orta case is concerning because “fit parents have the fundamental constitutional right ‘to make decisions concerning the care, custody, and control of their children.’ … This right is an element of liberty protected by due process. … In my view, this interest can be infringed whenever a child is removed from a parent’s care, regardless of whether the child is removed pursuant to a neglect or abuse proceeding instituted by the state or via placement with a private guardian with the state’s approval.” And although the rights of a parent whose child is placed in a guardianship are typically not terminated forever, “the failure to adhere to a court-structured guardianship plan can segue into a termination of parental rights, MCL 712A.19b(3)(e), at which point the lack of attorney assistance at the guardianship stage may be impossible to untangle.”

Justice Cavanagh further noted that, in Michigan, parents are not entitled to the assistance of counsel in contested guardianship proceedings. “This is understandable to a degree, as there remain legal uncertainties and a lack of uniformity regarding the foundation of the right to counsel in termination proceedings. Even with the total loss of a fundamental right at stake, the United States Supreme Court has held that due process does not necessarily require the appointment of counsel in every termination proceeding.”

Meanwhile, the U.S. Supreme Court has also recognized that “an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well,” Justice Cavanagh explained. “[A]t least 10 states have provided for a right to counsel in a termination proceeding under their respective state constitutions.”

The Court of Appeals “has held that parents have a constitutional right to counsel at a termination proceeding,” Justice Cavanagh observed. “Moreover, a parent’s right to the assistance of counsel at a child protective proceeding, including a termination hearing, is codified by both statute and court rule in this state. … This Court … has not addressed whether Michigan’s Due Process Clause, Const 1963, art 1, § 17, supports a constitutional entitlement to the assistance of counsel at a termination proceeding. Without a recognized constitutional right to counsel at a termination proceeding, the foundation for a parent’s right to counsel in a guardianship proceeding where the deprivation is generally less permanent remains largely unexplored and unresolved.”

Justice Cavanagh also pointed out that parents in guardianship proceedings have no right to the assistance of counsel through statute or court rule, and do not have a recognized constitutional right to such assistance. She also emphasized that not all parents “may want or need” legal assistance in a guardianship proceeding, as many guardianships are entered into with the consent of a parent and the assistance of an attorney is not necessarily needed.

Orta is a prime example of a guardianship that was imposed against a parent’s will, in violation of statute and in violation of a parent’s fundamental rights, Justice Cavanagh said, emphasizing that court-appointed attorneys would be helpful in contested guardianship cases to safeguard parental rights and to ensure “fundamentally fair” procedures. “In this case, for example, a court-appointed attorney may have been able to recognize the trial court’s initial errors and lodge a successful objection or counsel petitioner-mother about her right to appeal the guardianship order. Perhaps, in that hypothetical scenario, petitioner-mother would not have been deprived of the care, custody, and companionship of her children for almost five years.”

Justice Cavanagh concluded: “I urge our Legislature to consider enacting a statutory right to court-appointed counsel for parents in guardianship proceedings as it has provided for parents in termination proceedings.”