The order from which the respondent appealed in this termination of parental rights case was not a “final order” pursuant to the court rules, a Michigan Court of Appeals majority has decided.

As a result, the Court of Appeals majority ruled that it did not have jurisdiction “as of right” over the appeal in In re Harden, Minors (Docket No. 362580).

“However,” the Court of Appeals majority continued, “this Court has discretion to treat respondent’s claim of appeal as an application for leave to appeal and grant it. We choose to exercise that discretion ….”

Judge Mark J. Cavanagh and Judge Michael J. Riordan joined the majority opinion.

Judge Mark T. Boonstra issued a separate opinion, in which he concurred and dissented. “I part company with the majority solely with respect to its analysis of our appellate jurisdiction,” he said. “Whereas the majority concludes that the trial court’s … order was not appealable by right (but the majority nonetheless exercises its discretion to treat respondent’s claim of appeal as an application for leave to appeal and grant it), I conclude that the … order was appealable by right.”

Background

The respondent’s parental rights to two of her other children were terminated in 2019. When she gave birth to a third child, KRH, the Michigan Department of Health and Human Services (DHHS) filed a petition in the Wayne County Circuit Court, asking the trial court to exercise jurisdiction over the child and terminate the respondent’s parental rights to that child at the initial dispositional hearing. The DHHS supported its request by noting the termination of the respondent’s parental rights to her first two children, alleging the respondent did not have stable housing and was living at a motel. The petition also alleged the respondent had been diagnosed with bipolar and schizoaffective disorder, but was not engaged in mental health services, and that she had exhibited “unstable and aggressive behavior toward others.”

The Wayne County trial court ordered that KRH be placed with her father pending further proceedings. The trial court held there were grounds for exercising jurisdiction over KRH and found that statutory grounds for terminating the respondent’s parental rights to KRH were established pursuant to MCL 712A.19b(3)(g), (i) and (j). However, the trial court found that termination of parental rights was not in the child’s best interests. Accordingly, the trial court adjudicated KRH a temporary ward of the court and ordered the respondent be provided with a treatment plan with respect to KRH, including mental health treatment.

When the respondent gave birth to JLH in July 2021, the DHHS filed another petition asking the trial court to exercise jurisdiction over the child. Like the previous petition, the DHHS asked the trial court to terminate the respondent’s parental rights to JLH at the initial dispositional hearing.

On June 9, 2022, the trial court ruled: 1) statutory grounds for jurisdiction over JLH were established under MCL 712A.2(b)(1) and (2); 2) statutory grounds for terminating the respondent’s parental rights to JLH were established under MCL 712A.19b(3)(g), (i) and (j); and 3) a best-interests hearing would be held at a later date to determine whether the respondent’s parental rights to JLH should be terminated.

On August 15, 2022, before the best-interests hearing was held, the respondent filed a claim of appeal from the June 9, 2022 order. The lower court record indicated that, after the appeal was filed, the trial court held a best-interests hearing with respect to JLH in September and October 2022. In addition, while JLH’s father was unidentified at the time of the earlier hearings, a father was later identified through DNA testing and he was allowed to participate in the proceedings.

After JLH’s best-interests hearing concluded, the trial court entered an order of adjudication and the initial dispositional order on November 1, 2022. The trial court: 1) held it was not in JLH’s best interests to terminate the respondent’s parental rights to the child; 2) declared JLH a temporary ward of the court and placed the child in the custody of his father; and 3) ordered the respondent be provided the same treatment plan for JLH that was already in place for KRH.

Appellate Jurisdiction

At the outset of its opinion, the Court of Appeals addressed, on its own, whether it had jurisdiction to hear the respondent’s appeal.

“This Court has jurisdiction as of right in an appeal filed by an aggrieved party from ‘[a] final judgment or order … as defined in MCR 7.202(6),’ or ‘[a] judgment or order … from which appeal of right to the Court of Appeals has been established by law or court rule,’” the Court of Appeals said, citing MCR 7.203(A)(1) and (2).

Here, the respondent filed her claim of appeal from the trial court’s June 9, 2022 order on August 15, 2022. “In the jurisdictional statement in her brief on appeal, respondent relies on MCR 3.993(A)(2) as the court rule establishing her right to appeal the June 9, 2022 order,” the Court of Appeals observed. “That rule provides that ‘an initial order of disposition following adjudication in a child protective proceeding’ is appealable as of right to this Court. Although this rule allows respondents in child-protective proceedings to appeal a trial court’s jurisdictional decision as of right, it is the entry of the initial order of disposition following adjudication that triggers that appeal by right.”

This case, however, “had not yet proceeded to disposition when respondent filed her claim of appeal on August 15, 2022,” the Court of Appeals said. “The June 9, 2022 order was not an order of disposition because it did not decide an action to be taken on JLH’s behalf. Rather, the petition to terminate respondent’s parental rights to JLH at the initial dispositional hearing remained pending. JLH’s disposition still depended on the outcome of the best-interests hearing, which was scheduled for a later date.”

Therefore, “this Court does not have jurisdiction over this appeal as of right because the June 9, 2022 order does not qualify as a final order under MCR 7.202(6), the order does not implicate jurisdiction under MCR 3.993(A)(2) because it was not the ‘initial order of disposition’ following JLH’s adjudication, …” the Court of Appeals explained, citing MCR 7.203(A)(1) and (2).

“However, this Court has discretion to treat respondent’s claim of appeal as an application for leave to appeal and grant it,” the Court of Appeals pointed out. “We choose to exercise that discretion, … limited to respondent’s arguments challenging the trial court’s exercise of jurisdiction over JLH and the issue of visitation.”

The Court of Appeals further declined to grant leave on the respondent’s challenges to the portion of the trial court’s order finding that statutory grounds for termination were established under MCL 712A.19b(3)(g), (i), and (j) with respect to JLH. The appeals court said it made this decision “because the record discloses that the trial court ultimately denied petitioner’s request to terminate respondent’s parental rights to JLH at the initial dispositional hearing. Because of that later decision, respondent no longer is an aggrieved party with respect to the trial court’s ruling regarding the existence of statutory grounds for termination. … Furthermore, because the trial court found that termination of respondent’s parental rights to JLH was not in the child’s best interests, and denied petitioner’s request to terminate respondent’s parental rights to JLH on that basis, any issue regarding the existence of a statutory ground for termination is moot. … Accordingly, we will only consider respondent’s challenge to the trial court’s exercise of jurisdiction over JLH and the issue of visitation.”

Trial Court Jurisdiction & Visitation Issues

Next, the Court of Appeals turned to the respondent’s argument that the trial court wrongly exercised jurisdiction over JLH.

“We disagree,” the Court of Appeals said, pointing out that when the petition was filed, the respondent’s parental rights to two other children had already been terminated and proceedings were pending for KRH, who had been removed from the respondent’s care.

“Further, because of respondent’s aggressive and disruptive conduct, only supervised visitation with KRH was permitted,” the Court of Appeals observed. “Although respondent testified that she was participating in mental health services, she had not provided any verification of that treatment to the workers. In spite of the mental health treatment that respondent claimed she was receiving, her behavior continued to be erratic, including during court hearings. Respondent also was not consistently visiting KRH, and she fought with and acted aggressively toward the workers. Moreover, the trial court found that respondent had made minimal progress in the four years since her first two children were removed from her care. A preponderance of the evidence supported that respondent’s mental health issues prevented her from providing proper and necessary care for JLH, and that JLH’s home environment, by reason of neglect, cruelty, or depravity on the part of respondent, was an unfit place for the child to live. Accordingly, the trial court did not clearly err by finding that a preponderance of the evidence supported the statutory grounds for jurisdiction.”

The Court of Appeals also refuted the respondent’s claim that the trial court erred by not awarding her extended visitation or visits supervised by a designee.

“In this case, respondent was afforded supervised visitation with her children,” the Court of Appeals said. “Further, the trial court ordered that the foster care workers had discretion to allow extended, unsupervised, or designee supervised visits. The trial court never denied any request to change visitation from supervised visits to either visits in the presence of a designated supervisor or unsupervised visits, but rather gave discretion to the foster care workers to allow such visits. MCL 712A.13a(13) does not require a trial court to make specific findings before determining the extent and manner in which visits are to be supervised. Moreover, when respondent again raised this issue at the conclusion of the adjudication trial, the worker clarified that respondent had been offered additional visits, but she declined them because she did not have the time. The trial court instructed petitioner to again offer additional or extended visits, and it again gave discretion to allow designee visits. Considering respondent’s continued erratic behavior and inconsistent attendance at scheduled visits, the trial court did not abuse its discretion or violate MCL 712A.13a(13) by granting the foster care workers discretion to change the visits, rather than outright granting respondent’s request for unsupervised or designee supervised visits.”

Dissent

Judge Boonstra said he dissented from the majority “only with regard to its determination to treat the matter before us as on leave granted, rather than as an appeal by right.”

According to Boonstra, the June 9, 2022 order “operated both as an order of adjudication and as an initial dispositional order with respect to JLH. I therefore respectfully disagree with the majority to the extent it concluded that the June 9, 2022 was not an initial dispositional order because ‘disposition still depended on the outcome of the best-interests hearing.’”

Once a trial court authorizes a petition in a child-protective proceeding, the adjudication takes place and the question at adjudication “is whether the trial court can exercise jurisdiction over the child (and the respondent-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights,” Boonstra explained. “It is permissible for the trial court to combine an adjudication trial and a dispositional hearing in a single proceeding. … Regardless of whether that was done properly in this case - an issue that is not before us - or whether the trial court accurately understood or characterized respondent’s appellate rights, the resulting order unmistakably constituted both an order of adjudication (finding grounds for exercising jurisdiction) and an initial dispositional order (finding statutory grounds for termination of parental rights). As an initial dispositional order, it was appealable by right under MCR 3.993(A) ….”