Parent Cannot Challenge The Effectiveness Of Child’s Attorney

The father in this termination of parental rights case did not have standing to claim that his child’s attorney provided ineffective assistance of counsel, the Michigan Court of Appeals has ruled, denying the father’s request to “abandon” case precedent on this issue.

In the case of In re Peters/Brinton/Mathews, Minors (Docket Nos. 367069 and 367070), the respondent-mother is the biological parent to all three minor children (KP, NB and EJM), while the respondent-father is only NB’s biological parent. The Berrien County Circuit Court found that the respondents had neglected the physical, emotional, mental and educational needs of the children; that returning the children to the respondents’ custody would present a substantial risk of harm to the children’s health and well-being; and that no other services or arrangement would adequately safeguard the children from risk of harm. Accordingly, the trial court ruled there were statutory grounds to take jurisdiction over the children under MCL 712A.2(b)(1) (failure to provide proper care and custody due to neglect or abandonment) and MCL 712A.2(b)(2) (unfit home environment due to neglect).

The respondent-father appealed. He argued, among other things, that NB’s lawyer-guardian ad litem (LGAL) had provided ineffective assistance of counsel.

The Court of Appeals rejected this claim and affirmed the trial court’s order.

Relying on case precedent, the Court of Appeals said the respondent-father did not have standing to challenge the effectiveness of NB’s counsel. Therefore, “we decline to address the merits of this argument,” the appeals court said in an unpublished opinion joined by Judge Michael J. Riordan and Judge Colleen A. O’Brien.

Judge Allie Greenleaf Maldonado disagreed with the majority’s decision, but for altogether different reasons. In her dissenting opinion, the judge said the Department of Health and Human Services (DHHS) and the trial court “flouted all Michigan and Federal safeguards for the preservation of Indian families. Because of this startling disregard for tribal rights, I dissent.”

An application for leave to appeal was recently filed with the Michigan Supreme Court (Docket No. 167215).

No Ineffective Assistance Claim For Parents

On appeal, the respondent-father argued the Court of Appeals should “abandon precedent and rule that respondent-parents have standing to challenge the effectiveness of a child’s attorney” - that is, the lawyer-guardian ad litem who was appointed by the trial court to represent NB.

“We decline respondent-father’s request,” the Court of Appeals said.

In its analysis, the Court of Appeals noted that the appellate court addressed this issue in In re HRC, 286 Mich App 444 (2009), and held that the respondent-parent did not have standing to challenge the effectiveness of the lawyer-guardian ad litem. (See also, “Flawed Parental Rights Precedent Is Being Perpetuated” on the Speaker Law Blog.)

The Court of Appeals, quoting the appellate panel in In re HRC, wrote:

It is true that children have a right to appointed counsel in child protective proceedings, MCL 712A.17c(7), and that a child’s attorney appointed under the juvenile code “has the same duties that any other client’s attorney would fulfill when necessary.” In re AMB, 248 Mich App 144, 224; 640 NW2d 262 (2001). In addition, although child protective proceedings are not criminal in nature, where the right to effective counsel arises from the Sixth Amendment, the Due Process Clause indirectly guarantees effective assistance of counsel in the context of child protective proceedings. In re C.R., 250 Mich App 185, 197-198; 646 N.W.2d 506 (2002).

Respondents’ argument, however, wrongly assumes that they have standing to challenge the alleged violation of [the child’s] constitutional rights. Generally, persons do not have standing to assert constitutional or statutory rights on behalf of another person. People v Wood, 447 Mich 80, 89; 523 NW2d 477 (1994). And, this Court has held that a respondent in a child protective proceeding lacks standing to challenge the effectiveness of the child’s attorney. As this Court stated in In re E.P., 234 Mich App 582, 598; 595 N.W.2d 167 (1999), overruled on other grounds 462 Mich 341; 612 NW2d 407 (2000):

[C]onstitutional protections are generally personal and cannot be asserted vicariously, but rather only “‘at the instance of one whose own protection was infringed.’” A plaintiff must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties. Because the right to effective assistance of counsel is a constitutional one, it is personal to the child and respondent may not assert it on behalf of the child. [Citations omitted.]

Accordingly, because respondents do not have standing to challenge the effectiveness of [the child’s] counsel, we decline to address the merits of this argument.”

Therefore, “[l]ike the respondent in In re HRC, respondent-father [in the present case] lacks standing to challenge the effectiveness of NB’s counsel, so we decline to address the merits of this argument,” the Court of Appeals held.

The Court of Appeals also rejected the respondent-father’s argument that the trial court did not make sufficient findings under MCL 712A.13a(9) and MCR 3.965(C)(2) to support placing NB in foster care. “The trial court’s findings on the record and in its order following the preliminary hearing plainly satisfy the requirements of MCL 712A.13a(9) and MCR 3.965(C)(2),” the appeals court said. “[W]e discern no error in the trial court’s decision to place NB in foster care.”

In addition, the respondent-mother argued on appeal that the trial court improperly found statutory grounds to take jurisdiction over the children. The Court of Appeals disagreed, saying the evidence presented, which included testimony from KP, “provided a more-than-sufficient basis for the trial court to exercise jurisdiction over the three minor children under both MCL 712A.2(b)(1) and (2).”