Rule Changes Coming In Termination Of Parental Rights Cases

The Michigan Supreme Court has adopted amendments to various Michigan Court Rules (MCR) that apply to termination of parental rights cases.

MCR 3.977, MCR 3.993, MCR 7.311 and MCR 7.316 have been revised to establish a procedure for assessing whether a respondent in a termination of parental rights case was denied effective assistance of appellate counsel, and if so, providing relief.

The court rule amendments are effective May 1, 2023.

The State Bar of Michigan Board of Commissioners, the State Bar of Michigan Appellate Practice Section and the State Bar of Michigan Children’s Law Section support the rule changes.

Lansing appellate attorney Liisa Speaker also favors the court rule amendments. “There have been many occasions where Speaker Law Firm was contacted after a parent lost their termination appeal in the Court of Appeals. We were then hired (or agreed to appear pro bono) in the Supreme Court. What we have seen many times was a mishandling of the case in the Court of Appeals, which hampered our ability to make a strong case to the Michigan Supreme Court. We have also tried to raise - for the first time in the Supreme Court - that appellate counsel was ineffective. Before this court rule change, that argument had never gained traction. This rule change will make it easier to pursue an appeal in the Michigan Supreme Court, and to show that court what should have been done in the COA and why it would have made a difference.”

Rule Revisions

The Michigan Supreme Court first proposed the rule changes in October 2022. After the expiration of a public comment period, the justices adopted the amendments in a March 22, 2023, order.

The following are the rule amendments. Additions to existing text are indicated by underlining.

MCR 3.977   Termination of Parental Rights

…

(K) Review Standard. The clearly erroneous standard shall be used in reviewing the court’s findings on appeal from an order terminating parental rights. On application in accordance with Chapter 7 of these rules, the Supreme Court may consider a claim of ineffective assistance of appellate counsel, and the Court will review such a claim using the standards that apply to criminal law.

MCR 3.993    Appeals

…

(C) Procedure; Ineffective Assistance of Appellate Counsel; Delayed Appeals.

(1) [Unchanged]

(2) Ineffective Assistance of Appellate Counsel Claims. In accordance with MCR 7.316(D), the Supreme Court may consider a claim of ineffective assistance of appellate counsel in cases involving termination of parental rights.

(2) [Renumbered (3) but otherwise unchanged]

MCR 7.311    Motions in Supreme Court

…

(H) Motion to Expand Record in Cases Involving Termination of Parental Rights. In a case involving termination of parental rights, a respondent who claims ineffective assistance of appellate counsel under MCR 7.316(D) may file a motion to expand the record to support that claim if appellate counsel’s errors are not evident on the record. The motion must be filed no later than the date the application is due.

MCR 7.316    Miscellaneous Relief

…

(D) Ineffective Assistance of Appellate Counsel Claims in Appeals Involving Termination of Parental Rights. If a respondent’s application for leave to appeal raises the issue of ineffective assistance of appellate counsel, the Court may consider the claim. In making its determination and in addition to any other action allowed by these rules or law, the Court may take the following actions:

(1) order the trial court to appoint new appellate counsel under MCR 3.993(D),

(2) allow the respondent time to retain new appellate counsel,

(3) grant a motion to expand the record under MCR 7.311(H), or

(4) remand the case to the Court of Appeals for a new appeal.

Supporting Comments

The State Bar of Michigan Board of Commissioners indicated its support of the rule amendments in a January 31, 2023 letter to the Clerk of the Michigan Supreme Court. “In its review, the Board considered recommendations from the Bar’s Access to Justice Policy Committee and Civil Procedure & Courts Committee, as well as the Children’s Law Section and Appellate Practice Section,” the Board wrote. “Given the gravity of the interests at stake in the decision to terminate an individual’s parental rights, the Board believes that establishing a clear procedure for addressing ineffective assistance of appellate counsel in termination cases is necessary and appropriate.”

The Appellate Practice Section adopted its position in favor of the changes at its December 16, 2022 meeting. According to the section, 17 members voted in favor of the section’s position, no members voted against this position, no members abstained and five members did not vote. While the Appellate Practice Section supported the amendments, it did so with “recommended amendments.” The section stated, “The Appellate Practice Section supports the proposal and suggests consideration be given to a fifth option under proposed MCR 7.306(D) consisting of a remand to the trial court for an evidentiary hearing.”

The Children’s Law Section adopted its position in favor of the rule amendments at its November 18, 2022 meeting. The section reported that seven members voted in favor of the section’s position, four members voted against the position, one member abstained and seven members did not vote. The Children’s Law Section said it supported the amendments “as drafted.” According to the section, “Termination of parental rights is the most significant consequence a litigant can sustain the civil court system. It is permanent severance of … one of the most fundamental liberty interests. The failure of counsel to effectively represent a respondent in a termination of parental rights proceeding can have irreversible consequences. This extends to appeals, which is the only error-correcting remedy in termination cases. [The] Children’s Law Section supports creating a procedure for respondent-parents to assert ineffective assistance of appellate counsel. It is critical to the constitutional rights of parents and the stability of families that courts get things right the first time, because there are no second chances after termination is finalized. Therefore, the procedure developed in ADM File No. 2022-05 will provide greater due process protections before permanently severing constitutional rights and ensuring that respondent-parents will have a fair chance to correct errors which occurred due to ineffective assistance of appellate counsel.”