Order Requiring Drug Tests for a Parent of a Juvenile Adjudicated Delinquent is Unconstitutional, but its Unconstitutionality Was Waived

In In re Dorsey, 306 Mich App 571; 858 NW2d 84 (2014), the appellant's son had been adjudicated delinquent and was subject to the jurisdiction of the family division of the circuit court. A child welfare/abuse and neglect case involving the appellant mother and the son ran concurrent with the juvenile adjudication hearings. Based on prior drug usage, under both the juvenile delinquency case and the child welfare case, the appellant mother was ordered to submit to drug testing. Once the child welfare case was closed, the appellant mother refused to comply with drug testing without consulting with her attorney. At a show cause hearing for failure to comply with the drug test order in the juvenile adjudication case, she said that she thought because her abuse and neglect case was over, she did not need to submit to drug testing, but that her son's probation officer had told her she wanted appellant mother to submit to drug testing for the delinquency case. The circuit court held her in contempt, sanctioning her with fines and 93 days in jail. The mother appealed the contempt order.

The Court of Appeals first affirmed that under MCL 712A.6 a family division of the circuit court exercises jurisdiction over a parent (or other adult) as it relates to a juvenile subject to the circuit court's jurisdiction. The Court of Appeals stated, quoting MCL 712A.6, that this "incidental jurisdiction" gives the circuit court authority to "make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular juvenile or juveniles under its jurisdiction."

The Court of Appeals then addressed an issue of first impression for Michigan courts: whether a trial court's order subjecting a parent of a child adjudicated delinquent (and under formal probation) to random drugs screens constitutes an unconstitutional search and seizure. The Court of Appeals first held that the random drug testing did constitute a Fourth Amendment 'search,' which necessitated a determination of whether the search was constitutionally reasonable. The Court of Appeals then ruled that the random drug testing order was an unconstitutional search. Adopting the reasoning of the Idaho and Utah Supreme Courts, the Court of Appeals held that though the state has a legitimate interest in protecting and rehabilitating juveniles adjudicated delinquent, "appellant did not enjoy a diminished expectation to privacy merely by virtue of the fact that her son had been adjudicated delinquent." The Court of Appeals noted that the purpose of the testing was ultimately general crime control and related to collection of evidence for law enforcement. However, despite its unconstitutionality, the Court of Appeals held that the issue of the constitutionality of the drug testing order was not an issue before the court because the issue on appeal was the finding of criminal contempt against the appellant mother. The Court of Appeals held that a person must object to the order when it is issued or the validity of the order will be waived, even if it is a constitutional challenge. A contemnor cannot relitigate the legal or factual basis for the order under which she has been held in contempt. Therefore, even though the drug testing order was unconstitutional, the Court of Appeals still affirmed the contempt holding against the appellant mother.

Therefore, despite the unconstitutionality of the contempt order, the Court of Appeals affirmed the contempt order in its entirety. This opinion, though apparently in line with precedent, raises some serious concerns for those subject to unconstitutional orders, especially where the party was in pro per and would likely not have the knowledge to object to the underlying order. These lines of opinion seem to undermine an individual's right to counsel for criminal proceedings since a major avenue of attack – the validity of the order – is waived by the time the right to counsel attaches. 

This case is currently pending on application in the Michigan Supreme Court.