7.9Respondent’s Right to Counsel

An indigent respondent in a child protective proceeding has the right to appointed counsel at any hearing (including the preliminary hearing). MCL 712A.17c(5); MCR 3.915(B)(1)(b). However, a person does not enjoy the right to court-appointed counsel until he or she is named as a respondent. In re Williams, 286 Mich App 253, 276-277 (2009). In In re Williams, supra at 276, a child’s father did not qualify as a respondent, and thus was not entitled to court-appointed counsel, when child protective proceedings were initiated against the child’s mother and the petition did not accuse him of any wrongdoing or allege that he was incapable of parenting his child. However, the father’s status changed, raising his right to court-appointed counsel, when the DHHS filed a supplemental petition four months later that directly named the father as a respondent. Id. at 276-277.

A respondent is “the parent, guardian, legal custodian, or nonparent adult who is alleged to have committed an offense against a child[,]” (except as provided in MCR 3.977(B)). MCR 3.903(C)(12). MCR 3.977(B) limits the definition of respondent for termination of parental rights hearings to only include the child’s natural or adoptive mother and the child’s father as defined by MCR 3.903(A)(7).¹ It does not include “other persons to whom legal custody has been given by court order, persons who are acting in the place of the mother or father, or other persons responsible for the control, care, and welfare of the child.” MCR 3.977(B).

MCR 3.903 defines parent, guardian, legal custodian, and nonparent adult as follows:

•“‘Parent’ means the mother, the father as defined in MCR 3.903(A)(7),^[2] or both, of the minor. It also includes the term ‘parent’ as defined in MCR 3.002(20).”³ MCR 3.903(A)(18).

•“‘Guardian’ means a person appointed as guardian of a child by a Michigan court pursuant to MCL 700.5204 or [MCL] 700.5205, by a court of another state under a comparable statutory provision, or by parental or testamentary appointment as provided in MCL 700.5202, or a juvenile guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.” MCR 3.903(A)(11).

•“‘Juvenile Guardian’ means a person appointed guardian of a child by a Michigan court pursuant to MCL 712A.19a or MCL 712A.19c. A juvenile guardianship is distinct from a guardianship authorized under the Estates and Protected Individuals Code.” MCR 3.903(A)(13).

•“‘Legal Custodian’ means an adult who has been given legal custody of a minor by order of a circuit court in Michigan or a comparable court of another state or who possesses a valid power of attorney given pursuant to MCL 700.5103 or a comparable statute of another state. It also includes the term ‘Indian custodian’ as defined in MCR 3.002(15).”⁴ MCR 3.903(A)(14).

•“‘Nonparent adult’ means a person who is 18 years of age or older and who, regardless of the person’s domicile, meets all the following criteria in relation to a child over whom the court takes jurisdiction under this chapter:

(a)    has substantial and regular contact with the child,

(b)    has a close personal relationship with the child’s parent or with a person responsible for the child’s health or welfare, and

(c)    is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree.” MCR 3.903(C)(7).

The court has discretionary authority to appoint counsel to assist an indigent noncustodial parent in contesting termination of parental rights under the Adoption Code.⁵ In re Sanchez, 422 Mich 758, 760-761 (1985). In In re Sanchez, supra at 770-771, the Michigan Supreme Court noted that when exercising its discretion,

“the trial court will be guided by the principle of assuring the nonconsenting parent the ability to present a case properly, measured in the particular case by factors such as the relative strength of the adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity.” 

A parent is not entitled to court-appointed counsel for a voluntary release of parental rights. See In re Blankenship, 165 Mich App 706, 713 (1988) (“[i]t is well established that there is no right to appointed counsel in a voluntary adoption matter”); In re Koroly, 145 Mich App 79, 88 (1985) (“the right to counsel does not extend to releases for adoption, which are voluntary in nature”); In re Jackson (Kenneth), 115 Mich App 40, 50-52 (1982) (“[t]here is no parallel statutory right to counsel provision under the Michigan Adoption Code, nor have the courts held that due process requires the right to counsel at such proceedings”).

A.Appointment of Counsel at Trial Court Level⁶

Once a person is named as a respondent during a child protective proceeding, the court must inform the respondent of his or her right to court-appointed counsel. In re Williams, 286 Mich App at 276. Specifically, the Court of Appeals found:

“Both MCL 712A.17c(4) and MCR 3.915(B)(1)(b) specifically extend the right of appointed counsel only to indigent ‘respondent[s]’ in child protective proceedings. The initial petition contained no allegations of wrongdoing against respondent father, and expressed no concerns about his ability to parent [his child]. Consequently, at the preliminary hearing, the adjudication, and the dispositional hearing, respondent father did not qualify as a ‘respondent.’ Although the foster care workers voiced some concerns involving respondent father’s medical condition, at no point until petitioner filed the supplemental petition did it directly identify an act or omission that converted respondent father’s status from that of a nonoffending parent into that of a respondent. Under the applicable statute and court rule, respondent father thus enjoyed no right to appointed counsel during the first four months of the proceedings. However, when the circuit court authorized the supplemental petition . . . , it was required to advise respondent father of his right to appointed counsel.” In re Williams, 286 Mich App at 276.

At a respondent’s first court appearance, the court must advise the respondent that he or she has:

(1) the right to an attorney at each stage of the proceeding (including the preliminary hearing);

(2) the right to a court-appointed attorney if he or she financially unable to retain one; and

(3) the right to request and receive a court-appointed attorney at a later proceeding if he or she is not represented by an attorney. MCL 712A.17c(4); MCR 3.915(B)(1)(a).

Note: An attorney’s appearance in a child protective proceeding is governed by MCR 2.117(B). MCR 3.915(C).

A respondent must make some type of affirmative action in order for the court to appoint an attorney. In re Hall (Sharnetta), 188 Mich App 217, 222 (1991).⁷ After a respondent requests court-appointed counsel, the court must appoint an attorney if “it appears to the court, following an examination of the record, through written financial statements, or otherwise, that the respondent is financially unable to retain an attorney.”⁸ MCR 3.915(B)(1)(b)(ii). See also MCL 712A.17c(5).

Note: When determining indigency, the trial court erred when it imputed all household income to the respondent, including income earned by those not legally obligated to contribute to the respondent’s attorney fees. In re Williams, 286 Mich App at 277. Specifically, the Court of Appeals found:

“[The Court] reject[s] the idea that a [trial] court may deny a respondent appointed counsel by imputing to the respondent income earned by people who bear no legal responsibility to contribute to the respondent’s legal expenses. Mere cohabitants, even if parents of an adult respondent, possess no obligation to pay the respondent’s attorney fees, and a [trial] court may not prohibit a respondent from exercising the right to appointed counsel on the basis of a calculation that imputes income from sources unavailable to the respondent. . . . Furthermore, [the DHHS] contended at the termination hearing that respondent father’s lack of ‘independent housing’ and his insufficient income supplied grounds for terminating his rights. We find it fundamentally unfair to deny appointed counsel because a respondent does not qualify as indigent, while at the same time invoking the respondent’s indigence as a ground for terminating parental rights.” In re Williams, 286 Mich App at 277.

If an attorney is appointed, the court may enter an order assessing costs of the representation to the respondent or against the person responsible for support of the respondent.⁹ MCR 3.915(E).

A respondent may waive his or her right to an attorney.¹⁰ MCL 712A.17c(6); MCR 3.915(B)(1)(c). See In re Hall (Sharnetta), 188 Mich App at 222, where the respondent waived her right to representation after effectively terminating her attorney-client relationship by failing to contact her court-appointed attorney for sixteen months, failing to appear at any review hearings, and residing at an unknown address where her attorney was unable to locate her. But see In re Collier, 314 Mich App 558, 576 (2016) (finding that the respondent did not “effectively terminate[] the attorney-client relationship or otherwise waive[] his right to be represented by counsel[] . . . [where the] respondent’s lack of communication with counsel spanned only one month, and it came on the heels of [the] respondent’s specific request for counsel”).

Similarly, the respondent’s absence from her termination hearing was not evidence of an intent to waive her right to counsel when the record showed that she “intended to contest the termination of her parental rights with the assistance of her trial counsel,” that she “attended and participated in the overwhelming majority of the court hearings,” and that she “was not properly served with the summons and supplemental petition indicating that the termination hearing would go forward.” In re Lovitt, ___ Mich App ___, ___ (2024). When a trial court permits a respondent’s attorney to withdraw, “the trial court must still ensure that a client’s rights and interests are protected[.]” Id. at ___. “An attorney who represents a client cannot withdraw from a case in a manner which leaves his client without notice and without an adequate opportunity to seek other representation.” Id. at ___ (quotation marks and citation omitted). In Lovitt, the trial court permitted respondent’s attorney to withdraw from the termination hearing and allowed the DHHS “to present its case against respondent completely unchallenged.” Id. at ___. “The trial court’s actions in proceeding with the termination hearing without informing respondent that she no longer had the assistance of her appointed counsel plainly violated respondent’s right to due process and seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. at ___.

Note: The court must not accept a minor respondent’s waiver of counsel over the objection of his or her parent, guardian, legal custodian, or guardian ad litem. MCL 712A.17c(6); MCR 3.915(B)(1)(c).

A court must permit a respondent who has initially waived counsel to withdraw from self-representation “if the [respondent] shows a legitimate reason for the change and if substitution would ‘not result in unwarranted disruption prejudicial to the orderly progress of the case’.” In re Cobb, 130 Mich App 598, 600-601 (1983), quoting People v Eddington, 77 Mich App 177, 188 (1977).

A court-appointed attorney must represent the respondent until discharged by the court. MCL 712A.17c(9); MCR 3.915(D)(2). A retained attorney may only withdraw from representation by court order. MCR 3.915(D)(1).

B.Appointment of Counsel in Proceedings Involving an Indian Child

The court must appoint counsel in any removal, placement, or termination proceeding where it determines the parent¹¹ or Indian custodian is indigent.¹² 25 USC 1912(b); MCL 712B.21. However, the court has discretion whether to appoint counsel for an Indian child and only upon a finding that court-appointed counsel would be in the child’s best interests. 25 USC 1912(b); MCL 712B.21.¹³

“If state law does not require the appointment of a lawyer-guardian ad litem for the child, the court may, in its discretion, appoint a lawyer-guardian ad litem for the child upon a finding that the appointment is in the best interest of the child.”¹⁴ MCL 712B.21(2). Michigan statutory law requires the court to appoint a lawyer-guardian ad litem to represent a child during child protective proceedings. MCL 712A.17c(7). See Section 7.10.

25 USC 1912(b) mandates that “[w]here State law makes no provision for appointment of counsel in [involuntary Indian child custody] proceedings, the court shall promptly notify the Secretary [of the Interior]^[15] upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to [25 USC 1913].” See also MCL 712B.21(1), which contains substantially similar language.

When the court notifies the Secretary of the Interior of the appointment of counsel, the court must also notify the Bureau of Indian Affairs (BIA) Regional Director in the Midwest Region Office. 25 CFR 23.11(b)(2);¹⁶ 25 CFR 23.13(a).¹⁷

The notice of appointment of counsel must include the following:

“(1) Name, address, and telephone number of attorney who has been appointed.

(2) Name and address of client for whom counsel is appointed.

(3) Relationship of client to child.

(4) Name of Indian child’s tribe.

(5) Copy of the petition or complaint.

(6) Certification by the court that state law makes no provision for appointment of counsel in such proceedings.

(7) Certification by the court that the Indian client is indigent.” 25 CFR 23.13(a).¹⁸

C.Effective Assistance of Counsel

“It is axiomatic that the right to counsel includes the right to competent counsel.” In re Trowbridge, 155 Mich App 785, 786 (1986). In other words, “[t]he right to counsel guaranteed by the United States and Michigan Constitutions, US Const, Am VI; Const 1963, art 1, § 20, is the right to effective assistance of counsel.” In re EP, 234 Mich App 582, 597 (1999), overruled on other grounds by In re Trejo, 462 Mich 341 (2000).¹⁹

“[O]nce the right to counsel exists, there is a correlative right to effective representation that is free from actual conflicts of interest.” In re Osborne (On Remand, After Remand), 237 Mich App 597, 606 (1999) (order terminating parental rights should not be reversed on the basis of a conflict of interest arising from the fact that the prosecutor that represented the Department of Health and Human Services (DHHS) at the termination hearing had represented the respondent parent at an earlier hearing in the same matter absent a showing of actual prejudice).

For a respondent to prevail on a claim of ineffective assistance of counsel, the respondent must show that “her trial counsel’s performance was deficient, i.e., she must ‘show that counsel’s performance fell below an objective standard of reasonableness, and that the representation so prejudiced’ her that it denied her a fair trial. This necessarily entails proving prejudice to [the respondent], which means that there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.’” In re CR, 250 Mich App 185, 198 (2002), overruled on other grounds by In re Sanders, 495 Mich 394 (2014),²⁰ quoting People v Johnson, 451 Mich 115, 124 (1996).

The effective assistance of counsel requires that counsel base his or her assistance on “‘professional decisions and informed legal choices,’” which requires counsel to conduct a reasonable investigation into the matter. In re Ross, 506 Mich 993 (2020) (determining that trial counsel should have pursued leads available in phone records that would have bolstered respondent’s credibility and revealed inconsistencies in complainant’s testimony), quoting Strickland v Washington, 466 US 668, 680 (1984). In Ross, 506 Mich at 993, trial counsel’s failure to investigate a matter that would have strengthened the respondent’s credibility and shown that the complainant’s narrative was inconsistent was “a fundamental abdication of [trial counsel’s] duty to conduct a complete investigation.” Had counsel investigated the matter further and presented at trial the evidence discovered during the investigation, a different result was probable. Id.

A respondent who has been appointed an attorney is “entitled to reasonably assume that she would be represented at any further proceedings despite her absence.” In re Lovitt, ___ Mich App ___, ___ (2024). An appointed attorney who seeks to withdraw from representing a respondent “without first engaging in the minimal effort to locate his client to notify them [has engaged in] conduct that falls below an objective standard of reasonableness.” Id. at ___.

Trial counsel may be ineffective for failing to engage an expert witness in support of counsel’s trial strategy or to challenge opposing counsel’s expert witness. In re Casto, ___ Mich App ___, ___ (2022). In Casto, “trial counsel testified at the Ginther^[21] hearing that her strategy was to attempt to show that [the minor’s] disclosures were not credible and were instead the product of coaching by mother.” Id. at ___. However, in spite of trial counsel’s strategy, she “did not investigate—or even consider investigating—an expert who could have provided valuable information on child memory, suggestibility, source misattribution, and forensic-interview protocols, all of which would have been materially useful to supporting the defense’s theory and assisting a fact-finder’s assessment of [the minor’s] disclosures.” Id. at ___. In addition, trial counsel not only failed to object to the admission of the report submitted by one of petitioner’s expert witnesses, “trial counsel stipulated to the admission of the report in its entirety and offered no specific objection with respect to [the expert’s] opining on the credibility of [the minor].” Id. at ___. The Court of Appeals agreed with the Supreme Court’s conclusion in a similar context and stated, “‘While we cannot say that a battle of the experts would have ensured’ a different outcome, ‘counsel’s failure to prepare or show up for the battle sufficiently undermines our confidence in the outcome of this case to entitle the [respondent] to relief.’” Id. at ___, quoting People v Ackley, 497 Mich 381, 397 (2015) (alteration in original).

A respondent cannot assert a claim of ineffective assistance of counsel on behalf of another person. In re EP, 234 Mich App at 598 (holding that the respondent could not assert a claim of ineffective assistance of counsel on behalf of her child because constitutional protections are personal and cannot be asserted vicariously).