in Re J Ferranti Minor ( 2019 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem:
Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
In re FERRANTI, Minor
Docket No. 157907. Argued on application for leave to appeal October 10, 2018. Decided
June 12, 2019.
The Department of Health and Human Services (the Department) petitioned the Otsego
Circuit Court, Family Division, to remove JF, a minor, from the care of respondents, her parents.
JF had spina bifida, a birth defect that affects the development of the spinal cord and that caused
JF to require medical care and supervision for her entire life. In particular, JF had trouble
ambulating without the aid of a mobility device and had to use a catheter to urinate. In 2015, the
Department petitioned the court for JF’s removal, alleging that respondents had failed to
adequately attend to JF’s medical needs by missing several medical appointments and by failing
to regularly refill her prescription medications. The Department also alleged that the living
conditions in respondents’ home posed a health risk to JF because it was cluttered, dirty, and had
a strong odor of animals and urine. The court held an emergency hearing and placed JF in foster
care, but the court permitted her to have unsupervised visits at respondents’ home. After several
more hearings, the trial court found probable cause to authorize the petition and set an adjudication
trial. At a preadjudication status conference, respondents admitted that they had not refilled several
of JF’s prescriptions, and the court exercised jurisdiction over JF. In taking respondents’ pleas,
the court did not advise them that they were waiving any rights nor did the court advise them of
the consequences of their pleas, as required by MCR 3.971. In January 2016, the court adopted
the Department’s proposed family treatment plan, which, among other things, required that
respondents maintain a clean home. The court concluded the final dispositional hearing in October
2016 by authorizing the Department to file a termination petition, but the court noted that its
decision was limited to that procedural step. The parties disputed the home’s suitability for JF,
and the court stated that it wanted to see the home for itself. The court visited the home in February
2017 but did not document its observations and factual findings. Additionally, during the
termination hearing, the court conducted an in camera interview with JF but made no record of
the conversation. The court, Michael K. Cooper, J., ultimately terminated respondents’ parental
rights. Respondents appealed. The Court of Appeals, SHAPIRO, P.J., and M. J. KELLY and
O’BRIEN, JJ., affirmed the trial court’s termination decision in an unpublished per curiam opinion
issued on May 10, 2018 (Docket Nos. 340117 and 340118), concluding that In re Hatcher, 443
Mich. 426 (1993), prohibited it from considering respondents’ claim that the trial court violated
their due-process rights by failing to advise them of the consequences of their pleas. The panel
also held that any error from the court’s visit to the family home did not violate respondents’ due-
process rights and that respondents waived the claim that the court’s in camera interview was
erroneous. Respondents applied for leave to appeal in the Supreme Court, which ordered and
heard oral argument on whether to grant the application or take other action. 502 Mich. 906 (2018).
In an opinion by Chief Justice MCCORMACK, joined by Justices VIVIANO, BERNSTEIN, and
CLEMENT, the Supreme Court, in lieu of granting leave to appeal, held:
In re Hatcher, 443 Mich. 426 (1993), which generally barred a parent from raising errors
from the adjudicative phase of a child protective proceeding in the parent’s appeal from an order
terminating his or her parental rights, was overruled. An appeal of an adjudication error in an
appeal from an order terminating parental rights is not a collateral attack because although a child
protective proceeding has two distinct phases—the adjudication and the disposition—the
proceeding itself is one action, not two separate actions. Therefore, the collateral-bar rule does
not apply within one child protective case. Also, the use of unrecorded, in camera interviews of
children in termination-of-parental-rights proceedings violates parents’ due-process rights.
1. Under MCR 3.961(A), a proceeding to terminate parental rights begins when the
Department petitions the family division of a circuit court to take jurisdiction over a child. The
trial court then holds a preliminary hearing to determine whether the court may exercise
jurisdiction over the child. If the court authorizes the petition, the adjudicative phase begins, in
which the court determines whether it may exercise jurisdiction over the child and the respondents-
parents under MCL 712A.2(b) so that it can enter dispositional orders. Once the court’s
jurisdiction is established, the case moves to the dispositional phase, in which the court holds
review hearings to determine whether the petition should be dismissed or whether the parents’
parental rights should be terminated. Hatcher, 443 Mich. 426, generally barred a parent from
raising errors from the adjudicative phase of a child protective proceeding in the parent’s appeal
from an order terminating his or her parental rights. Hatcher made a foundational mistake by
erroneously applying the rule from Jackson City Bank & Trust Co v Fredrick, 271 Mich. 538
(1935)—that a court’s exercise of jurisdiction cannot be collaterally attacked in a second
proceeding—to what is a single, continual proceeding. The “collateral bar” rule generally
prohibits a litigant from indirectly attacking a prior judgment in a later, separate action, unless the
court that issued the prior judgment lacked jurisdiction over the person or subject matter in the
first instance. Hatcher applied that rule to conclude that a respondent who appeals a defect in the
adjudicative phase at the end of the child protective proceeding (in an appeal from an order
terminating parental rights) is “collaterally” attacking that very same child protective proceeding.
But that holding failed to recognize that a child protective proceeding is a single, continual
proceeding that begins with a petition, proceeds to an adjudication, and—unless the family has
been reunified—ends with a determination of whether a respondent’s parental rights will be
terminated. Therefore, Hatcher was wrongly decided.
2. That a case was wrongly decided, by itself, does not necessarily mean that overruling it
is appropriate. Courts should review whether the decision defies practical workability, whether
reliance interests would work an undue hardship were the decision to be overruled, and whether
changes in the law or facts no longer justify the decision. In this case, the Supreme Court’s
growing list of exceptions to Hatcher showed that its rule defied simple application, especially
when a respondent’s due-process rights were violated in the adjudication. Hatcher disrupted the
careful balancing of interests in the juvenile code by preventing judicial review of meritorious
claims of defects in the adjudication; a parent’s only remedy under Hatcher was by way of an
interlocutory appeal, which disincentivized a parent from timely cooperating with the Department
and further delayed a final determination. With regard to reliance interests, Hatcher had scant
application; it merely imposed procedural limitations on a respondent’s ability to challenge errors
in the adjudication. Therefore, overruling Hatcher simply causes readjustments in litigation as
opposed to practical, real-world dislocations. Finally, when considering whether changes in the
law or facts no longer justify the decision, the erosion of Hatcher’s rule through the many
exceptions to it created uncertainty and thus justified overruling it. Accordingly, Hatcher was
overruled.
3. Parents have a fundamental right to direct the care, custody, and control of their children.
Under the Due Process Clause of the Fourteenth Amendment, for a plea to constitute an effective
waiver of a fundamental right, the plea must be voluntary and knowing. MCR 3.971(B)(3) and
(4) require the trial court to advise a respondent on the record or in a writing that is made a part of
the file of the allegations in the petition, the right to an attorney, the rights the respondent will be
waiving by entering a plea, the consequences of that plea (including the possibility that the plea
will be used as evidence in a proceeding to terminate parental rights), and to provide advice about
the respondent’s posttermination support obligations. Respondents argued that adjudication errors
raised after the trial court has terminated parental rights should be reviewed for plain error. Under
that standard, respondents must establish that (1) error occurred; (2) the error was “plain,” i.e.,
clear or obvious; and (3) the plain error affected their substantial rights. Additionally, the error
must have seriously affected the fairness, integrity, or public reputation of judicial proceedings.
The Department agreed that plain-error review applied to respondents’ claim of adjudication error,
and the Department acknowledged that the first and second prongs were satisfied in this case
because the court erred by failing to advise respondents of the consequences of their pleas and the
rights they were giving up; those errors were plain. The third prong was satisfied because the
constitutional deprivations of respondents’ fundamental right to direct the care, custody, and
control of JF affected the very framework within which respondents’ case proceeded; therefore,
the error affected respondents’ substantial rights. Finally, the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings because the trial court did not advise
respondents that they were waiving any of the rights identified in MCR 3.971(B)(3) and failed to
advise the respondents of the consequences of entering their pleas as required by MCR
3.971(B)(4). The trial court’s order of adjudication therefore had to be vacated.
4. The propriety of a trial court conducting an in camera interview of the subject child in
the context of child protective proceedings was an issue of first impression in Michigan. In this
case, respondents’ agreement to the general idea of the court speaking to JF did not waive their
right to have that interview comport with due process. Respondents endorsed only the court’s
initial proposal that the court wished to speak with JF, but the court never sought—and respondents
never gave—their agreement about how that conversation would take place. There was nothing
in the juvenile code, caselaw, court rules, or otherwise that permitted a trial court presiding over a
termination proceeding to conduct in camera interviews of children for purposes of determining
their best interests. Therefore, the Court of Appeals correctly held that the use of unrecorded, in
camera interviews in termination proceedings violates parents’ due-process rights. On remand, a
different judge must preside.
Trial court order terminating respondents’ parental rights vacated; trial court order of
adjudication vacated; case remanded to the trial court for further proceedings with a different judge
presiding on remand.
Justice MARKMAN, joined by Justice ZAHRA, dissenting, would not have overruled Hatcher
because it was correctly decided and no sound reason to alter its common-law rule was presented.
Justice MARKMAN would have affirmed the judgment of the Court of Appeals because the Court
of Appeals correctly held that respondents cannot collaterally attack the instant adjudication after
their parental rights have been terminated, that respondents waived the issue pertaining to the
interview of the child, and that any error on the trial court’s part in visiting respondents’ home was
harmless. In this case, although the trial court breached MCR 3.971 by failing to advise
respondents of their rights, respondents failed to timely raise this issue. Respondents did not
appeal the adjudication until after the trial court had terminated their parental rights, nearly two
years after the adjudication. An adjudication cannot be collaterally attacked following an order
terminating parental rights unless the termination occurred at the initial disposition; however, in
this case, the adjudication and the termination were separated by a lengthy period of attempts at
reunification and, therefore, respondents were barred from collaterally attacking the adjudication.
The majority was incorrect in failing to recognize that although there is only one final order in a
child protective case, there are at least two orders that are appealable by right, i.e., the initial
dispositional order and the order terminating parental rights. The time to directly attack the
adjudication is following the order of disposition placing a minor under supervision of the court.
Black’s Law Dictionary (6th ed) defines “collateral attack” as “[a]n attack on a judgment in any
manner other than by action or proceeding, whose very purpose is to impeach or overturn the
judgment; or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an
action or proceeding that has an independent purpose other than impeaching or overturning the
judgment.” An order terminating parental rights has an independent purpose other than
overturning the adjudication—to attack the termination. Therefore, attacking the adjudication in
the appeal of the termination order constitutes a collateral—rather than a direct—attack. The
collateral-attack rule is a common-law rule, and when it comes to alteration of the common law,
the traditional rule must prevail absent compelling reasons for change. The majority failed to set
forth a reason, let alone a compelling reason, to justify its alteration of Hatcher’s common-law
rule. Contrary to the majority’s assertion, numerous “exceptions” to the Hatcher rule have not
been carved out.
Furthermore, the court rules were recently amended to essentially incorporate Hatcher;
specifically, the court rules now require the trial court to advise parents that they have an appeal
of right from the initial dispositional order and that if they do not challenge the adjudication at that
point, they will not be able to challenge it after their parental rights have been terminated, with
two exceptions. Given that this Court just incorporated Hatcher into its court rules, Justice
MARKMAN was not sure why the majority felt compelled to overrule it in its opinion. In addition,
Justice MARKMAN would not overrule Hatcher because finality is critical with regard to child
protective proceedings. Allowing a “do-over” is not fair to the children who will be required to
endure this process again—or to prospective adoptive parents—and it further results in wasted
time, money, and resources as well as disrupts whatever progress and rehabilitation the children
might have made during that time. Just as the new court rules reasonably balance the rights of
parents and children, and afford a clear opportunity for a fresh start for the abused or neglected
child, so too did the prior court rules. It is not right that JF alone should be made subject to a third
court rule regime, which does not reasonably balance the interests of parent and child and requires
a lengthy re-do of an already lengthy and fair legal process only because of the failure of
respondents—already deemed by a court of law to have acted neglectfully—to have abided by the
law in pursuing a timely appeal. Thus, in a realm of the law in which reasonable expedition of
decision-making has always been thought by the judiciary to be paramount, the majority imposes
in this single case a process that is reflective of our legal system at its most unnecessarily drawn
out and dilatory.
Justice CAVANAGH did not participate in the disposition of this case because the Court
considered it before she assumed office.
©2019 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Bridget M. McCormack Stephen J. Markman
Brian K. Zahra
Chief Justice Pro Tem: Richard H. Bernstein
David F. Viviano Elizabeth T. Clement
Megan K. Cavanagh
FILED June 12, 2019
STATE OF MICHIGAN
SUPREME COURT
In re FERRANTI, Minor.
No. 157907
BEFORE THE ENTIRE BENCH (except CAVANAGH, J.)
MCCORMACK, C.J.
This Court’s decision in In re Hatcher, 443 Mich. 426; 505 NW2d 834 (1993),
generally bars a parent from raising errors from the adjudicative phase of a child protective
proceeding in the parent’s appeal from an order terminating his or her parental rights. The
Hatcher rule rests on the legal fiction that a child protective proceeding is two separate
actions: the adjudication and the disposition. With that procedural (mis)understanding, we
held that a posttermination appeal of a defect in the adjudicative phase is prohibited
because it is a collateral attack. This foundational assumption was wrong; Hatcher was
wrongly decided, and we overrule it.
The Hatcher rule prevented these respondents-parents from challenging the
undisputed defects in their pleas—the pleas that supported the trial court’s exercise of
dispositional authority and the termination of the respondents’ parental rights. We reverse
the Court of Appeals, vacate the trial court’s order of adjudication and order terminating
the respondents’ parental rights, and remand this case to the trial court for further
proceedings. And because the trial court violated the respondents’ due-process rights by
conducting an unrecorded, in camera interview of the subject child before the court’s
resolution of the termination petition, a different judge must preside on remand.
I. FACTUAL AND PROCEDURAL HISTORY
The respondents have several children together. Their youngest, a daughter, JF, was
born in 2003. JF has spina bifida, a birth defect relating to the gestational development of
the spinal cord. As a result of her spina bifida, JF has trouble ambulating without the aid
of a mobility device. Also related to spina bifida, JF has neurogenic bladder, and she must
use a catheter to urinate. JF has required medical care and supervision for her entire life.
In October 2015, the petitioner, the Department of Health and Human Services (the
Department), petitioned to remove JF from the respondents’ care. The Department alleged
that the respondents had failed to adequately attend to JF’s medical needs by missing
several medical appointments and failing to regularly refill her prescription medications.
The Department also alleged that the living conditions in the respondents’ home posed a
health risk to JF. The petition described the respondents’ home as having “clutter
throughout,” making it difficult to maneuver in a wheelchair. The petition also described
JF’s bathroom as “filthy” and the home as having “a strong odor of animals and urine.”
2
The court held an emergency hearing on the petition and placed JF in foster care,
but the court permitted her to have unsupervised visits at the respondents’ home. After
several more hearings, the trial court found probable cause to authorize the petition and set
an adjudication trial.
At a preadjudication status conference in December 2015, the respondents admitted
that JF had been prescribed medications for her health condition, that they had not refilled
several of JF’s prescriptions since January 2015, and that some of those prescriptions could
have been refilled at no cost. These admissions allowed the trial court to exercise
jurisdiction over JF. The respondents made no other admissions.
In taking the respondents’ pleas, the court did not advise them that they were
waiving any rights. Nor did the court advise them of the consequences of their pleas, as
required by our court rules. See MCR 3.971.1 And although it was not required to do so
1
MCR 3.971 is to be amended on the date this opinion is issued. MCR 3.971 previously
provided, in part:
(B) Advice of Rights and Possible Disposition. Before accepting a
plea of admission or plea of no contest, the court must advise the respondent
on the record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the
rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
3
by our court rules, the court did not advise the respondents that they could appeal its
decision to take jurisdiction over JF.
(c) have witnesses against the respondent appear and testify under
oath at the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes
could give testimony in the respondent’s favor;
(4) of the consequences of the plea, including that the plea can later
be used as evidence in a proceeding to terminate parental rights if the
respondent is a parent.
(5) if parental rights are subsequently terminated, the obligation to
support the child will continue until a court of competent jurisdiction
modifies or terminates the obligation, an order of adoption is entered, or the
child is emancipated by operation of law. Failure to provide required notice
under this subsection does not affect the obligation imposed by law or
otherwise establish a remedy or cause of action on behalf of the parent.
(C) Voluntary, Accurate Plea.
(1) Voluntary Plea. The court shall not accept a plea of admission or
of no contest without satisfying itself that the plea is knowingly,
understandingly, and voluntarily made.
(2) Accurate Plea. The court shall not accept a plea of admission or
of no contest without establishing support for a finding that one or more of
the statutory grounds alleged in the petition are true, preferably by
questioning the respondent unless the offer is to plead no contest. If the plea
is no contest, the court shall not question the respondent, but, by some other
means, shall obtain support for a finding that one or more of the statutory
grounds alleged in the petition are true. The court shall state why a plea of
no contest is appropriate.
The amended rule does not alter this language. But the language that had appeared in MCR
3.971(C) will now appear in MCR 3.971(D), the revised rule contains new language at
MCR 3.971(C), and MCR 3.971(B) will contain additional subparts. Further references in
this opinion to MCR 3.971(C) are to the language quoted in this footnote.
4
At the initial dispositional hearing held on January 12, 2016, the trial court adopted
the family treatment plan proposed by the Department. That plan required the respondents
to complete psychological examinations, maintain a clean home, and attend all of JF’s
scheduled medical appointments. The court’s initial dispositional order maintained JF’s
placement in foster care and continued to allow JF to have unsupervised visits with the
respondents at the family home.
As discussed, the Department’s initial assessment of the home (as alleged in the
petition) was that it posed a health risk unique to JF because her bladder catheterization
was susceptible to infection. But at a preadjudication hearing held shortly after the
Department filed its petition, JF’s lawyer-guardian ad litem (LGAL) described the
respondents’ home as “habitable” and “suitable” for JF.2 And although the respondents’
treatment plan required them to maintain a clean home, neither the parties nor the court
focused on this issue at the first two dispositional review hearings in April and July 2016.3
But at the third and final dispositional hearing in October 2016, the parties disputed the
home’s suitability for JF.
The trial court concluded the October hearing by authorizing the Department to file
a termination petition, but the court noted that its decision was limited to that procedural
2
The trial court had instructed the LGAL to inspect the respondents’ home at the initial
emergency hearing on the petition.
3
The respondents successfully completed other aspects of the treatment plan. The
respondents underwent court-ordered psychological evaluations. Those evaluations
determined that neither respondent posed a significant risk of physical or emotional abuse
to JF. The psychologist reported that many of the alleged parenting failures were
attributable to a lack of scheduling and organization. And the Department acknowledged
at the permanency planning hearing that the respondents had attended all of JF’s medical
appointments, in accordance with the treatment plan.
5
step. The court was troubled by the conflicting testimony about the condition of the home
and stated that it wanted to see the home for itself. And the court did that in February 2017.
While the record shows that the respondents’ attorneys and the LGAL were present when
the court visited the family home, the court did not document its observations and factual
findings. The respondents’ attorneys were prohibited from addressing the court during the
visit.
The court conducted the termination hearing over three days in May, June, and July
2017. After the June hearing date, the court stated that it was “inclined to speak with [JF]”
and invited objections from counsel. When the hearing resumed in July, the court
announced that it had conducted an in camera interview with JF. The court made no record
of its conversation with JF.
The court terminated the respondents’ parental rights, citing two statutory grounds
for termination: MCL 712A.19b(3)(c)(i)4 and MCL 712A.19(3)(g).5 The court determined
that both grounds were satisfied by clear and convincing evidence because of the “very
unhygienic household circumstance, and a lack of or inability to create hygienic
conditions . . . .” In its analysis of the child’s best interests, the court explained that the
4
MCL 712A.19b(3)(c)(i) allows the court to terminate a parent’s parental rights if “182 or
more days have elapsed since the issuance of an initial dispositional order, and the
court . . . finds [that] [t]he conditions that led to the adjudication continue to exist and there
is no reasonable likelihood that the conditions will be rectified within a reasonable time
considering the child’s age.”
5
MCL 712A.19b(3)(g) allows the court to terminate a parent’s parental rights if “[t]he
parent . . . fails to provide proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and custody within a
reasonable time considering the child’s age.”
6
home environment “is not as atrociously bad as it was, but even when the Court viewed
the situation, it is not where a person with Spinal [sic] Bifida will thrive.”
The respondents appealed. They challenged the trial court’s jurisdiction to
terminate their parental rights because of the defects in their pleas, and they challenged the
trial court’s ability to fairly decide the termination decision (and the respondents’ ability to
challenge that decision on appeal) as a result of the court’s unrecorded visit to the family
home and the in camera interview with JF. The Court of Appeals affirmed the trial court’s
termination decision in an unpublished opinion. In re Ferranti, unpublished per curiam
opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and 340118).
The panel concluded that our holding in Hatcher prohibited it from considering the
respondents’ claim that the trial court violated their due-process rights by failing to advise
them of the consequences of their pleas. Ferranti, unpub op at 6. The panel also held that
any error from the visit to the family home did not violate the respondents’ due-process
rights, id. at 8, and that the respondents waived the claim that the court’s in camera
interview was error, id. at 9.
The respondents sought leave to appeal in this Court. We granted oral argument on
the application and directed the parties to address these issues:
(1) whether this Court’s opinion in In re Hatcher, 443 Mich. 426 (1993),
correctly held that the collateral attack rule applied to bar the respondent-
parents from challenging the court’s initial exercise of jurisdiction over the
respondents on appeal from an order terminating parental rights in that same
proceeding; (2) if not, (a) by what standard should courts review the
respondents’ challenge to the initial adjudication, in light of the respondents’
failure to appeal the first dispositional order appealable of right, see MCR
3.993(A)(1), and (b) what must a respondent do to preserve for appeal any
alleged errors in the adjudication, see e.g., In re Hudson, 483 Mich. 928
(2009); (3) if Hatcher was correctly decided, whether due process concerns
may override the collateral bar rule, see, In re Sanders, 495 Mich. 394 (2014),
7
and In re Wangler, 498 Mich. 911 (2015); (4) whether a trial court is
permitted to visit a respondent’s home to observe its condition, and, if so,
what parameters should apply to doing so; and (5) whether a trial court may
interview a child who is the subject of child protective proceedings in
chambers, and, if so, what parameters should apply to doing so. [In re
Ferranti, 502 Mich. 906, 906 (2018).]
II. LEGAL BACKGROUND
We review the interpretation and application of statutes and court rules de novo. In
re Sanders, 495 Mich. 394, 404; 852 NW2d 524 (2014). Whether child protective
proceedings complied with a parent’s right to due process presents a question of
constitutional law, which we also review de novo. Id. at 403-404. De novo review means
we review this issue independently, with no required deference to the courts below.
A. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN
Child protective proceedings are governed by the juvenile code, MCL 712A.1 et
seq., and Subchapter 3.900 of the Michigan Court Rules. Any person who suspects child
abuse or neglect may report their concerns to the Department. MCL 712A.11(1). The
Department, after conducting a preliminary investigation, may then petition the Family
Division of the circuit court to take jurisdiction over the child. MCR 3.961(A). That
petition must contain, among other things, “[t]he essential facts” that, if proven, would
allow the trial court to assume jurisdiction over the child. MCR 3.961(B)(3); see also MCL
712A.2(b). After receiving the petition, the trial court must hold a preliminary hearing and
may authorize the filing of the petition upon a finding of probable cause that one or more
8
of the allegations are true and could support the trial court’s exercise of jurisdiction under
MCL 712A.2(b). See MCR 3.965(B).6
If the court authorizes the petition, the adjudication phase follows. The question at
adjudication is whether the trial court can exercise jurisdiction over the child (and the
respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders,
including an order terminating parental rights. See Sanders, 495 Mich. at 405-406. The
court can exercise jurisdiction if a respondent-parent enters a plea of admission or no
contest to allegations in the petition, see MCR 3.971, or if the Department proves the
allegations at a trial, see MCR 3.972. “If a trial is held, the respondent is entitled to a jury,
the rules of evidence generally apply, and the petitioner has the burden of proving by a
preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged
in the petition.” Sanders, 495 Mich. at 405 (citations omitted). And “[w]hile the
adjudicative phase is only the first step in child protective proceedings, it is of critical
importance because the procedures used in adjudicative hearings protect the parents from
the risk of erroneous deprivation of their parental rights.” Id. at 405-406 (quotation marks,
citation, and brackets omitted). The adjudication divests the parent of her constitutional
right to parent her child and gives the state that authority instead.
Once the trial court’s jurisdiction is established, the case moves to the dispositional
phase. In this phase, the trial court has “broad authority” to enter orders that are
“ ‘appropriate for the welfare of the juvenile and society in view of the facts proven and
6
If the child is not in protective custody and the petition does not request placement outside
the family home, then a preliminary hearing is not required. Instead, the probable-cause
determination (and the appropriate course of action) is made through a preliminary inquiry,
a comparatively less formal process. See MCR 3.962.
9
ascertained.’ ” Id. at 406, quoting MCL 712A.18(1). During the dispositional phase the
court must hold review hearings “to permit court review of the progress made to comply
with any order of disposition and with the case service plan [i.e., the family treatment
plan] . . . and court evaluation of the continued need and appropriateness for the child to
be in foster care.” MCR 3.975(A). If the child is removed from the family home, the court
must conduct a permanency planning hearing within 12 months from the date of removal.
MCL 712A.19a(1); MCR 3.976(B)(2). This hearing results in either the dismissal of the
petition and family reunification, or the court ordering the Department to petition for the
termination of parental rights. MCL 712A.19a(4); MCR 3.976(A).
If the Department files a termination petition, the court holds a termination hearing.
See MCR 3.977. The court acts as fact-finder, MCR 3.977(I), and the rules of evidence
generally do not apply, MCR 3.977(H)(2). If the court determines by clear and convincing
evidence that one or more statutory grounds for termination exist, see MCL 712A.19b(3),
the court must enter an order terminating the respondents’ parental rights unless the court
determines that termination is clearly not in the child’s best interests. In re Trejo, 462 Mich.
341, 344; 612 NW2d 407 (2000).
B. IN RE HATCHER
In Hatcher, 443 Mich. at 428, we considered whether a respondent-parent may
challenge the trial court’s “assumption of subject matter jurisdiction over a minor
child . . . after a termination decision and, if so, whether the entire termination proceedings
should be declared void ab initio.” Or more simply: whether a parent could challenge
errors in the adjudication when appealing the termination of his or her parental rights.
10
The Hatcher trial court authorized the filing of a petition and placement of the child
with the grandmother after conducting a preliminary hearing that neither parent attended.
Id. at 429. At the adjudication, both parents stipulated to the court’s jurisdiction over their
child, but they did not testify to or admit any facts that would support that jurisdiction. Id.
at 430; see MCL 712A.2(b). The court held three dispositional hearings before the
permanency planning hearing; neither parent challenged the court’s jurisdiction at those
hearings. Id. at 430-431. Following the permanency planning hearing, the trial court
terminated both parents’ rights. The father appealed, challenging the court’s adjudication.
He argued, and the Court of Appeals agreed, that “the termination proceedings were void
ab initio, [and] that the [trial] court never assumed valid subject matter jurisdiction over
the child,” because neither parent ever admitted to facts supporting a statutory basis for
jurisdiction. Id. at 432; see In re Waite, 188 Mich. App. 189, 208; 468 NW2d 912 (1991);
In re Nelson; 190 Mich. App. 237, 241-242; 475 NW2d 448 (1991).
We reversed. We held that the father’s claim of error (the adjudication-by-
stipulation) did not deprive the court of subject matter jurisdiction but “address[ed] the
procedure by which the probate court proceeded after it had established subject matter
jurisdiction on the basis of a validly filed petition.” Hatcher, 443 Mich. at 438 (emphasis
added). We explained:
[T]he probate court’s subject matter jurisdiction is established when the
action is of a class that the court is authorized to adjudicate, and the claim
stated in the complaint is not clearly frivolous. The valid exercise of the
probate court’s statutory jurisdiction is established by the contents of the
petition after the probate judge or referee has found probable cause to believe
that the allegations contained within the petitions are true. . . . When the
referee considered the facts alleged in the petition and the testimony
presented, he found probable cause that the allegations were true.
Consequently, it was proper for the court to invoke its jurisdiction, assuming
11
the court also had jurisdiction of the parties, a fact not here in dispute.
Procedural errors that may have occurred did not affect the probate court’s
subject matter jurisdiction.
Although neither the mother nor the father stipulated facts that
supported the court’s jurisdiction, this jurisdiction is initially established by
pleadings, such as the petition, rather than by later trial proceedings that may
establish by a preponderance of the evidence that a child is within the
continued exercise of the probate court’s subject matter jurisdiction. [Id. at
437-438.]
Again, more simply: Hatcher held that the trial court’s error did not deprive it of
subject matter jurisdiction—it was simply an adjudicative error. And the father could not
appeal that error; he should have either appealed the order authorizing the filing of the
petition7 or challenged the issue at a dispositional hearing. Id. at 438 (“The respondent
could have appealed the court’s exercise of its statutory jurisdiction by challenging the
sufficiency of the petition . . . . Alternatively, he could have pursued a number of statutory
proceedings designed to redress an erroneous exercise of jurisdiction.”), citing MCL
712A.19; MCL 712A.21. Because he did neither, we prohibited his termination challenge,
calling it a “collateral attack.” Id. at 444 (“Our ruling today severs a party’s ability to
challenge a probate court decision years later in a collateral attack where a direct appeal
was available.”). That characterization was novel and inconsistent with our collateral-
attack jurisprudence.8
7
It is unclear why the Hatcher Court viewed a challenge to the sufficiency of the petition
as a suitable means for redressing the father’s claim of error in the adjudication—the trial
court’s failure to establish by plea or trial any of the statutory bases for jurisdiction set forth
at MCL 712A.2(b). The error in the adjudication occurred after the preliminary hearing,
when the probable-cause determination was made; the father could not have appealed an
error that had yet to occur.
8
Hatcher overturned this Court’s decision in Fritts v Krugh, 354 Mich. 97; 92 NW2d 604
(1958). Fritts, id. at 115, had permitted a challenge to a termination order in a writ of
12
Later decisions summarized the rule from Hatcher as barring a respondent-parent
from challenging errors in the adjudicative phase in an appeal from an order terminating
the respondent’s parental rights, unless the termination of rights occurs at the initial
dispositional hearing. See In re SLH, 277 Mich. App. 662, 668-669; 747 NW2d 547 (2008).9
habeas corpus, a separate and collateral action from the child protective proceeding that
resulted in termination. A brief detour about Fritts is in order, because it gives some
context to Hatcher. While the Fritts Court found that the initial petition sufficiently alleged
jurisdictional facts, and the trial court therefore “had jurisdiction . . . for purposes of
hearing the neglect complaint,” id. at 111, the Court still concluded that the trial court
lacked (or had been divested of) jurisdiction to terminate the petitioners’ parental rights
because of insufficient factual support for the allegations in the complaint (petition), id. at
115; see MCL 712A.2(b)(1). And while Fritts was a collateral attack on the trial court’s
termination order, the Court acknowledged that the petitioners’ challenge was not based
on a lack of personal or subject matter jurisdiction, id. at 120-121, but some other (and it
seems, broader) concept of jurisdiction, id. at 122 (“We hold that the orders entered upon
the record of this hearing . . . represented an erroneous concept of the power conveyed by
statute upon the probate court sitting in juvenile division, and that, being based upon no
evidence of permanent neglect, they represented a fundamental miscarriage of justice as to
these petitioners and exceeded the statutory powers of the probate judge who entered
them.”). Fritts was a true collateral attack; the dissent recognized this and criticized the
Fritts majority for allowing “the use of the writ of habeas corpus as a substitute for statutory
appeal . . . .” Id. at 145 (BLACK, J., dissenting) (quotation marks and citation omitted).
Here, as in Hatcher, there is no collateral proceeding—the respondents’ arguments
are on direct appeal from the order of termination. So while the Hatcher Court’s desire to
overrule Fritts’s procedurally anomalous holding—that a termination order can be (truly)
collaterally attacked—is understandable, see Hatcher, 443 Mich. at 444 (“Our ruling today
severs a party’s ability to challenge a probate court decision years later in a collateral attack
where a direct appeal was available.”), and its criticism of Fritts’s substantive jurisdictional
holding is also sound, see id. at 440-443, Hatcher was not a collateral attack. It was a
direct appeal of an (unpreserved) adjudicative error.
9
In SLH, 277 Mich. App. at 668, the Court of Appeals explained that Hatcher has no
application when termination is sought in a petition filed before the adjudication, because
“an adjudication cannot be collaterally attacked . . . [unless] a termination occurs following
the filing of a supplemental petition for termination after the issuance of the initial
dispositional order.” (Cleaned up.)
13
III. ANALYSIS
A. RESPONDENTS’ ADJUDICATORY PLEAS AND IN RE HATCHER
The respondents believe that their due-process rights were violated because their
pleas were not knowingly and voluntarily made. They object to the trial court’s failure to
inform them that they had a right to a jury trial on the allegations in the petition, at which
the Department would have to prove those allegations by a preponderance of the evidence
and the respondents would be permitted to call their own witnesses and cross-examine
those produced by the Department. The respondents also fault the trial court for its failure
to advise them that their pleas could later be used as evidence to terminate their parental
rights. And about Hatcher, the respondents argue that it was wrongly decided because it
misunderstood child protective proceedings. We agree.
The respondents have a fundamental right to direct the care, custody, and control of
JF. See Sanders, 495 Mich. at 415. And the Due Process Clause of the Fourteenth
Amendment requires that, for a plea to constitute an effective waiver of a fundamental
right, the plea must be voluntary and knowing. See In re Wangler, 498 Mich. 911, 911
(2015) (stating that “the manner in which the trial court assumed jurisdiction violated the
respondent-mother’s due process rights” because the trial court failed to follow MCR
3.971(C)(1) and (2) before accepting the respondent’s adjudicatory plea); see also People
v Cole, 491 Mich. 325, 332-333; 817 NW2d 497 (2012) (“For a plea to constitute an
effective waiver of . . . rights, the Due Process Clause of the Fourteenth Amendment
requires that the plea be voluntary and knowing.”).
Our court rules reflect this due-process guarantee. MCR 3.971(C)(1) demands that
the trial court ensure that a respondent’s plea be knowingly, understandingly, and
14
voluntarily made before the court can accept it. And MCR 3.971(B) requires the trial court
to advise the respondent, “on the record or in a writing that is made a part of the file,” of
the allegations in the petition, the right to an attorney, the rights the respondent will be
waiving by entering a plea, the consequences of that plea (including the possibility that the
plea will “be used as evidence in a proceeding to terminate parental rights,” MCR
3.971(B)(4)), and to provide advice about the respondent’s posttermination support
obligations.
The Department concedes that the trial court did not comply with these rules,
violating the respondents’ due-process rights. Wangler, 498 Mich. at 911. Recognizing
that Hatcher would bar them from appealing this claim of error, the respondents ask us to
revisit our decision in Hatcher and either overrule it or carve out (yet another) exception
to its collateral-bar rule when application would prevent a respondent from vindicating a
due-process violation.
Hatcher made a foundational mistake; it erroneously applied the rule from Jackson
City Bank & Trust Co v Fredrick, 271 Mich. 538; 260 N.W. 908 (1935)—that a court’s
exercise of jurisdiction cannot be collaterally attacked in a second proceeding—to what is
a single, continual proceeding.
In Jackson City Bank, 271 Mich. at 544-545, we explained that
[w]hen there is a want of jurisdiction over the parties, or the subject-matter,
no matter what formalities may have been taken by the trial court, the action
thereof is void because of its want of jurisdiction, and consequently its
proceedings may be questioned collaterally as well as directly. They are of
no more value than as though they did not exist. But in cases where the court
has undoubted jurisdiction of the subject matter, and of the parties, the action
of the trial court, though involving an erroneous exercise of jurisdiction,
which might be taken advantage of by direct appeal, or by direct attack, yet
the judgment or decree is not void though it might be set aside for the
15
irregular or erroneous exercise of jurisdiction if appealed from. It may not
be called in question collaterally.
Put differently, the “collateral bar” rule generally prohibits a litigant from indirectly
attacking a prior judgment in a later, separate action, unless the court that issued the prior
judgment lacked jurisdiction over the person or subject matter in the first instance. See In
re Ives, 314 Mich. 690, 696; 23 NW2d 131 (1946). Instead, the litigant must seek relief by
reconsideration of the judgment from the issuing court or by direct appeal.10
Hatcher applied the collateral-bar rule to conclude that a respondent who appeals a
defect in the adjudicative phase at the end of the child protective proceeding (in an appeal
from an order terminating parental rights) is “collaterally” attacking that very same child
protective proceeding. But that holding failed to recognize that “[a] child protective
proceeding is ‘a single continuous proceeding’ ” that begins with a petition, proceeds to an
adjudication, and—unless the family has been reunified—ends with a determination of
whether a respondent’s parental rights will be terminated. In re Hudson, 483 Mich. 928,
935 (2009) (CORRIGAN, J., concurring), quoting In re LaFlure, 48 Mich. App. 377, 391; 210
NW2d 482 (1973).
Collateral-bar jurisprudence makes the Hatcher Court’s mistake obvious. The rule
bars a litigant from challenging a ruling or judgment in a later and separate case. Thus, in
10
Jackson City Bank’s general rule prohibiting collateral attacks on a court’s final
judgment is well settled and common across jurisdictions. See Hazel-Atlas Glass Co v
Hartford-Empire Co, 322 U.S. 238, 244; 64 S. Ct. 997; 88 L. Ed. 1250 (1944) (“Federal courts,
both trial and appellate, long ago established the general rule that they would not alter or
set aside their judgments after the expiration of the term at which the judgments were
finally entered. . . . This salutary general rule springs from the belief that in most instances
society is best served by putting an end to litigation after a case has been tried and judgment
entered.”).
16
Jackson City Bank, 271 Mich. at 546, we held that the plaintiffs, heirs of the defendant’s
deceased second husband, were barred from asserting claims that challenged the validity
of the defendant’s divorce from her first. The other cases Hatcher cited agree. See Life
Ins Co of Detroit v Burton, 306 Mich. 81, 84-85; 10 NW2d 315 (1943) (defendant-surety
barred from seeking reformation of a surety bond in a later collection action brought by the
plaintiff-creditor); Edwards v Meinberg, 334 Mich. 355; 54 NW2d 684 (1952) (error in
venue did not divest the issuing court of subject matter jurisdiction, so the plaintiff was
barred from asserting that the earlier judgment against him was invalid). In all these cases,
the party seeking to challenge the earlier ruling or judgment did so in a separate, later
proceeding (and even in a different forum).
Nor did Hatcher explain its novel application of the rule. The Hatcher Court held
that the trial court’s error in the adjudication did not deprive the court of subject matter
jurisdiction, as the Court of Appeals thought, but merely affected “the procedure by which
the probate court proceeded after it had established subject matter jurisdiction on the basis
of a validly filed petition.” Hatcher, 443 Mich. at 438. So far, so good. But Hatcher’s
next step is unexplained; it went on to apply the collateral-bar rule from Jackson City Bank
to bar appellate review of the error with no reasoning to make understandable why
appealing the claim of error in the adjudication amounted to a collateral attack.
More confusing still, the Court’s prescription for what the respondent-father should
have done contradicts its conclusion. The Court reasoned that the father could have raised
the adjudication error at one of the dispositional review hearings or even in a motion for
17
rehearing from the order terminating parental rights. Id. at 436.11 But this rationale
conflicts with the Court’s conclusion that his appeal raising that same claim amounted to a
collateral attack. True, a party’s failure to timely assert a right in the trial court generally
means that any resulting error will be treated as “unpreserved” if challenged on appeal.
See People v Carines, 460 Mich. 750; 597 NW2d 130 (1999); People v Grant, 445 Mich.
535; 520 NW2d 123 (1994). But issue preservation dictates the appellate standard of
review; it does not transform direct review into collateral attack. See Carines, 460 Mich.
at 761-764 (discussing the plain-error doctrine).
Hatcher was wrongly decided.
But we don’t disrupt precedent whenever that’s the case. We have to consider
whether Hatcher’s precedential value compels us to retain its rule of decision under the
principles of stare decisis. Coldwater v Consumers Energy Co, 500 Mich. 158, 172; 895
NW2d 154 (2017) (stating that the mere fact that “a case was wrongly decided, by itself,
does not necessarily mean that overruling it is appropriate”). The stare decisis analysis
should not be “ ‘applied mechanically,’ ” id. at 173 (citation omitted), but generally we
consider these principles: “whether the decision defies practical workability, whether
reliance interests would work an undue hardship were the decision to be overruled, and
whether changes in the law or facts no longer justify the decision,” id.
This Court’s growing list of “exceptions” to Hatcher deserves emphasis at the front
end of this analysis. See, e.g., Sanders, 495 Mich. 394 (reversing a termination in which
11
The Court also reasoned that the father could have challenged the sufficiency of the
petition or the probable-cause determination. Hatcher, 443 Mich. at 438. But as discussed
above at note 7, those procedural steps occurred well before the trial court’s error.
18
one parent was improperly adjudicated as unfit and holding that the one-parent doctrine is
unconstitutional); In re Mays, 490 Mich. 993 (2012) (reversing a termination after the trial
court made an erroneous factual finding during the adjudication phase); In re Mason, 486
Mich. 142; 782 NW2d 747 (2010) (reversing a termination based on the failure to facilitate
the respondent’s involvement and participation during the adjudication and dispositional
phases); In re Hudson, 483 Mich. 928 (remanding when the trial court failed to advise the
respondent that her plea could be used to terminate her parental rights); In re Mitchell, 485
Mich. 922 (2009) (same); In re Jones, 499 Mich. 862 (2016) (reversing a parental
termination order after the Court of Appeals held that the respondent’s claims were barred
by Hatcher); Wangler, 498 Mich. at 911 (same). While we overrule Hatcher only now, if
these exceptions haven’t fully swallowed the rule, it is surely most of the way through the
chewing process. The resulting disruption affects our analysis of each of the stare decisis
principles. To those now.
First, a rule of decision defies practical workability if it has proved difficult to apply
or implement. See, e.g., Montejo v Louisiana, 556 U.S. 778, 792; 129 S. Ct. 2079; 173 L. Ed.
2d 955 (2009). On first blush, Hatcher might appear easy to apply—an appellate court
reviewing a termination decision should simply reject any claims relating to the
adjudication. But that has not been our experience. Instead, the number of exceptions to
Hatcher is good evidence that its rule defies simple application, especially when a
respondent’s due-process rights are violated in the adjudication. And if history is our
guide, trying to craft yet another exception to Hatcher here will not end the matter. This
factor does not favor keeping Hatcher.
19
We also consider reliance interests, including “whether reliance interests would
work an undue hardship were the decision to be overruled . . . .” Coldwater, 500 Mich. at
173. The question is “whether the previous decision has become so embedded, so accepted,
so fundamental, to everyone’s expectations that to change it would produce not just
readjustments, but practical real-world dislocations.” Id. (quotation marks and citation
omitted). Hatcher has scant application; it just imposes procedural limitations on a
respondent’s ability to challenge errors in the adjudication. Given this, overruling Hatcher
would not cause “practical, real-world dislocations” but simply “readjustments” in
litigation.
The litigants and practitioners who had to decide whether to raise a claim of error
within the procedural restrictions of Hatcher had little stability, given our growing
exceptions to it. And lawyers and litigants are not similarly situated. Lawyers know both
about trial court error and Hatcher’s rule (and its exceptions), but litigants are likely aware
of neither. Take this case: the trial court’s error meant that the respondents were never told
what rights they were giving up, nor were they advised that they couldn’t appeal the due-
process violation that resulted from their defective plea unless they did so immediately.
Finally, we consider whether changes in the law or facts no longer justify the
decision. See Coldwater, 500 Mich. at 174. Our growing list of Hatcher cutouts favors
overruling it. Continuing Hatcher’s death by a thousand cuts would leave litigants and
courts unsure of whether they can appeal an adjudicative error in an appeal from an order
terminating parental rights. The erosion of the rule by its exceptions has created
uncertainty; we should be providing clarity.
20
Rather than create yet another exception to Hatcher, we overrule it. We are mindful
of the finality concerns that motivated the Court’s decision to adopt the rule. See Hatcher,
443 Mich. at 444 (explaining that the Court’s holding would “provide repose to [those] who
rely upon the finality of probate court decisions”).12 But we must balance the interest in
finality against the Legislature’s intent as expressed in the juvenile code to support children
in their own homes, see MCL 712A.1(3) (“This chapter shall be liberally construed so that
each juvenile coming within the court’s jurisdiction receives the care, guidance, and
control, preferably in his or her own home, conducive to the juvenile’s welfare and the best
interest of the state.”), and the protection of the constitutional rights of families. “The right
to parent one’s children is essential to the orderly pursuit of happiness by free men and is
perhaps the oldest of the fundamental liberty interests[.]” Sanders, 495 Mich. at 409,
quoting Meyer v Nebraska, 262 U.S. 390, 399-400; 43 S. Ct. 625; 67 L. Ed. 1042 (1923), and
Troxel v Granville, 530 U.S. 57, 65; 120 S. Ct. 2054; 147 L. Ed. 2d 49 (2000) (opinion by
O’Connor, J.) (cleaned up).
And “there will normally be no reason for the State to inject itself into the private
realm of the family” because “there is a presumption that fit parents act in the best interests
of their children.” Troxel, 530 U.S. at 68. Thus, “[w]hen a child is parented by a fit parent,
the state’s interest in the child’s welfare is perfectly aligned with the parent’s liberty
interest.” Sanders, 495 Mich. at 416. For that reason, it is the “[a]djudication [that] protects
12
Although we overrule Hatcher, we agree with its criticism of Fritts. An error in the
adjudication (the error in Fritts, Hatcher, and here) will not, as a general matter, provide a
parent with grounds to collaterally attack the order of termination in a later, separate
proceeding, as the Court permitted in Fritts. But Hatcher’s prescription of prohibiting
direct appellate review was a misfire.
21
the parents’ fundamental right to direct the care, custody, and control of their children,
while also ensuring that the state can protect the health and safety of the children.” Id. at
422.
But Hatcher disrupts the careful balancing of interests in our juvenile code by
preventing judicial review of meritorious claims of defects in the adjudication. That is, it
prevents review of mistakes in the government process that permanently separates a parent
from a child. A parent’s only remedy under Hatcher is by way of an interlocutory appeal,
disincentivizing him or her from timely cooperating with the Department and further
delaying a final determination. Hatcher disserves parents, their children, and the state. It’s
time to disavow it.
On to the merits. The parties agree that adjudication errors raised after the trial court
has terminated parental rights are reviewed for plain error. See Mitchell, 485 Mich. at 922
(reviewing for plain error the trial court’s failure to timely appoint counsel for the
respondent and failure to advise the respondent that his plea could later be used in a
proceeding to terminate his parental rights); Hudson, 483 Mich. at 928 (same). The
respondents must establish that (1) error occurred; (2) the error was “plain,” i.e., clear or
obvious; and (3) the plain error affected their substantial rights. Carines, 460 Mich. at 763.
And the error must have “seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings[] . . . .” Id. (citation and quotation marks omitted; alteration in
original).13
13
The final requirement of plain-error review is also satisfied “when the plain, forfeited
error resulted in the conviction of an actually innocent defendant,” Carines 460 Mich. at
763, which reflects plain error’s origin as a rule of federal criminal procedure, see United
States v Olano, 507 U.S. 725; 113 S. Ct. 1770; 123 L. Ed. 2d 508 (1993); FR Crim P 52. We
22
The Department acknowledges that the first and second prongs are satisfied. Due
process and our court rules require a trial court to advise respondents-parents of the rights
that they will waive by their plea and the consequences that may flow from it. The court
erred by failing to advise these respondents of the consequences of their pleas and the rights
they were giving up; those errors were plain.
But the Department believes that the errors did not affect the respondents’
substantial rights because it would have been able to prove the allegations had the case
proceeded to an adjudication trial. This misses the point; the constitutional deficiencies
here are not forgiven by what might have transpired at trial. The respondents’ pleas were
not knowingly, understandingly, and voluntarily made. Wangler, 498 Mich. at 911 (“[W]e
conclude that the trial court violated MCR 3.971(C)(1) by failing to satisfy itself that the
respondent-mother’s plea was knowingly, understandingly, and voluntarily made, and
violated MCR 3.971(C)(2) by failing to establish support for a finding that one or more of
the statutory grounds alleged in the petition were true. Therefore, the manner in which the
trial court assumed jurisdiction violated the respondent-mother’s due process rights.”).
The respondents were deprived of their fundamental right to direct the care, custody,
and control over JF based on those invalid pleas. And the invalid pleas relieved the
Department of its burden to prove that the respondents were unfit at a jury trial, with all of
its due-process protections. See Sanders, 495 Mich. at 405 (explaining that in an
have applied Carines’s plain-error test in appeals from juvenile proceedings. See, e.g.,
Mitchell, 485 Mich. at 922. The Court of Appeals has as well. See In re VanDalen, 293
Mich. App. 120, 135; 809 NW2d 412 (2011). But we did so without explanation. We apply
the test here because neither party has argued for a different standard for juvenile
proceedings despite the differences between these cases and criminal cases.
23
adjudication trial the respondent “is entitled to a jury, . . . the rules of evidence generally
apply, . . . and the petitioner has the burden of [proof]”). These constitutional deprivations
affected the very framework within which respondents’ case proceeded. There was error,
it was plain, and it affected the respondents’ substantial rights. See Mitchell, 485 Mich. at
922; Hudson, 483 Mich. at 928.
Finally, we conclude that the error here seriously affected the fairness, integrity, or
public reputation of judicial proceedings. The trial court did not advise the respondents
that they were waiving any of the important rights identified in MCR 3.971(B)(3). And it
failed to advise the respondents of the consequences of entering their pleas. MCR
3.971(B)(4). This failure resulted in the respondents’ constitutionally defective pleas and
undermined the foundation of the rest of the proceedings. The defective pleas allowed the
state to interfere with and then terminate the respondents’ fundamental right to parent their
child. Due process requires more: either a plea hearing that comports with due process and
the court rule or, if respondents choose, a trial. MCR 3.971; MCR 3.972. We thus vacate
the trial court’s order of adjudication.
B. THE TRIAL COURT’S IN CAMERA INTERVIEW
The respondents also believe that their due-process rights were violated by the trial
court’s in camera interview of JF. See In re HRC, 286 Mich. App. 444, 455-456; 781 NW2d
105 (2009). They have asked us to vacate the court’s order terminating parental rights and
remand the case to a different trial judge—the Court of Appeals’ remedy in HRC, which
held that “the use of unrecorded, in camera interviews in termination proceedings violates
parents’ due process rights.” Id. at 455.
24
This Court has never addressed the propriety of a trial court conducting an in camera
interview of the subject child in the context of a child protective proceeding. The HRC
panel’s holding reflected its concern that in camera interviews might unduly influence the
trial court’s factual findings and termination decision, and because the process provides no
opportunity for cross-examination by respondents or their counsel, the practice also
prejudices a respondent’s ability to impeach the witness and forecloses meaningful
appellate review. Id. at 455-456. The inability to un-ring the bell required a different judge
on remand. Id. at 457 (“[B]ecause we do not know what information the trial court learned
during those interviews, we cannot ascertain whether the trial court would be able to set
aside any information obtained in making a new determination . . . .”).
The Department does not argue that HRC was wrongly decided. It argues that the
respondents waived this due-process claim when their counsel supported the trial court’s
suggestion.
On the second day of the termination hearing, the respondents’ attorneys indicated
that they had no further witnesses to call. This prompted the following exchange:
The Court: I have a question for counsel. I’m inclined to speak with
[JF]. I mean, I’ve heard a lot of description about it and the counsel who
represent her parents may need to talk to the parents. It’s not specifically
provided for. In the statute where it is in the domestic relations when there
is a divorce or custody matter, and I’ve done dozens, if not hundreds of those,
and when I do it I have somebody in there with me, just because I think that’s
a better policy. Anyone has a right to object, so I’m just contemplating is
that all right or is there an opposition to it?
Ms. Breuker [counsel for the Department]: In this particular case, I
don’t necessarily have a problem with it.
The Court: All right. I wouldn’t do it in most, but—Mr. Leonardson?
25
Mr. Leonardson [counsel for respondent-father]: Your Honor, I would
actually request it. I think it’s important in this particular case because there
is such a strong bond with the family, and that bond, part of it is because of
[JF’s] needs through her entire life.
The Court: Sure. But you don’t object to that?
Mr. Leonardson: No, I certainly don’t.
The Court: Mr. Gelow?
Mr. Gelow [counsel for respondent-mother]: We don’t object. We
encourage the Court to talk with [JF].
The court then discussed the logistics of arranging to speak to JF. After reviewing
its docket, the court indicated to its clerk that it would speak to JF immediately before one
of the respondents’ upcoming parenting-time visits14 and that it might conduct the
interview in chambers if there were “a lot of people” in the courtroom. This logistical
discussion involved only the court, its clerk, and the Department; the respondents and their
lawyers were not included. On the basis of this record, the Court of Appeals agreed with
the Department that the respondents had waived any challenge relating to the interview.
Ferranti, unpub op at 7.
We disagree. Waiver is “the intentional relinquishment or abandonment of a known
right,” as distinct from a litigant’s failure to timely assert that right (forfeiture). Carines,
460 Mich. at 762 n 7 (quotation marks and citation omitted). Here, the respondents’
agreement to the general idea of the court speaking to JF did not waive their right to have
14
Although the respondents and JF enjoyed unsupervised visits without incident
throughout the adjudication and dispositional phase, the court modified its initial visitation
order in January 2017, shortly after it allowed the Department to file the supplemental
petition seeking termination of the respondents’ parental rights. By the time of the
termination hearing, the respondents’ parenting time was limited to Department-supervised
visits.
26
that interview comport with due process. The respondents endorsed only the court’s initial
proposal that the court was “inclined to speak to [JF].” But the court never sought—and
the respondents never gave—their agreement about how that conversation would take
place.
Those details matter. It is not apparent from the record whether the respondents
thought they were agreeing to an on-the-record interview with counsel and with the
opportunity for their own examination of JF, or if the respondents knew that the court’s
process would entail none of that.15 The record supports only that the respondents were
consenting to a conversation between the judge and JF, with the specifics yet to be
determined. Because the court could have conducted that interview in a way that would
not have triggered due-process concerns,16 we cannot conclude that the respondents’
support of the court’s general suggestion amounted to the “intentional relinquishment or
abandonment of a known right.” Carines, 460 Mich. at 762 n 7 (quotation marks and
citation omitted).
We agree with the Court of Appeals that “the use of unrecorded, in camera
interviews in termination proceedings violates parents’ due process rights.” HRC, 286
Mich. App. at 455.
15
While the Department suggests in its briefing that the respondents were aware of the
procedure the court intended to use, it cites no record support. And the record seems to
contradict this claim. The court discussed its plans only after soliciting the respondents’
support, and then only in vague terms. And at the final day of the termination hearing,
counsel for the respondent-father, while presenting his closing argument, referred to the
prospect of the court speaking with JF. The trial court promptly interjected to inform
counsel that, much to his surprise, the trial court had already interviewed her.
16
Most obviously, the court might have examined JF on the record, in the presence of the
parties and counsel, and with the opportunity for examination of the witness.
27
As the HRC panel explained, there is “nothing in the juvenile code, the caselaw, the
court rules, or otherwise [that] permits a trial court presiding over a termination of parental
rights case to conduct in camera interviews of the children for purposes of determining
their best interests.” Id. at 454. And while we sympathize with the court’s apparent
concern that testifying on the record and in the presence of parties and counsel would have
caused discomfort to JF, that interest does not outweigh the respondents’ interest in having
any testimony on the record, given “the fundamental parental rights involved in termination
proceedings, the risk of an erroneous deprivation of those rights given the in camera
procedure, and the fact that the information is otherwise easily obtained . . . .” Id. at 456;
see also Sanders, 495 Mich. at 410-411 (discussing the three-part balancing test used to
determine the constitutional sufficiency of procedures when the state seeks to interfere with
a parent’s rights). On remand a different judge must preside.17
IV. CONCLUSION
We hold that an appeal of an adjudication error in an appeal from an order
terminating parental rights is not a collateral attack. The collateral-bar rule does not apply
within one child protective case, barring some issues from review. Hatcher was wrongly
decided, and we overrule it.
The trial court violated the respondents’ due-process rights when it accepted the
respondents’ pleas without advising them of their rights or ensuring that the respondents’
17
The Department argues that the respondents waived this claim; it makes no argument
about what standard should apply if the error wasn’t waived. The Court of Appeals in HRC
reviewed for plain error; the panel’s analysis did not depend on the respondent-parent
showing outcome-determinative error, presumably because the nature of the trial court’s
error makes that impossible. See HRC, 286 Mich. App. at 456-457.
28
pleas were knowingly, understandingly, and voluntarily made. Wangler, 498 Mich. at 911;
MCR 3.971. Because it was these legally erroneous pleas that gave the trial court the
dispositional authority to terminate the respondents’ parental rights, we vacate that order,
and the court’s order of adjudication, and remand this case to the trial court for further
proceedings consistent with this opinion. And the trial court’s improper in camera
interview of JF requires that a different judge preside on remand.
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
29
STATE OF MICHIGAN
SUPREME COURT
In re FERRANTI, Minor.
No. 157907
MARKMAN, J. (dissenting).
I respectfully dissent from the majority’s reversal of the judgment of the Court of
Appeals. The majority in the process overrules In re Hatcher, 443 Mich. 426; 505 NW2d
834 (1993), which held that an adjudication cannot be collaterally attacked following an
order terminating parental rights. I would not overrule Hatcher because I believe that it
was correctly decided and that no sound reason to alter its common-law rule has been
presented. Indeed, both parties and the amici agree that it makes sense to require a timely
appeal of the adjudication, which is all that Hatcher does, and this Court has just recently
adopted court rule amendments that essentially incorporate Hatcher into our court rules.1
The majority nevertheless chooses in this case to overrule Hatcher, which would allow
adjudication challenges to be brought years after the adjudication but for these same
amendments. Because I believe the Court of Appeals correctly held that: (a) respondents
1
The Court entered an order amending MCR 3.965, MCR 3.971, MCR 3.972, MCR 3.973,
and MCR 3.993 immediately before the release of this opinion. Therefore, citations of
court rules in this opinion refer to the court rules as amended on June 12, 2019. References
to the court rules as they existed before adoption of these amendments will be indicated
using the term “former” preceding the court rule number. Given that the “former” court
rules were the ones in existence at the time of the adjudication in this case, they are the
ones applicable to this case.
cannot collaterally attack the instant adjudication after their parental rights have been
terminated, (b) respondents waived the issue pertaining to the interview of the child, and
(c) any error on the trial court’s part in visiting respondents’ home was harmless, I would
affirm the judgment of the Court of Appeals.
I. BACKGROUND
The child whose future is at issue here, JF, was born in 2003 and has several serious
medical issues, including spina bifida, stage three chronic kidney disease, and a neurogenic
bladder (a dysfunction caused by neurological damage). As a result of a lack of innervation
to the lower half of her body, she has a stoma in her umbilicus to catheterize her bladder
and another stoma in the lower quadrant to flush her bowel. She is unable to walk
independently and therefore is mobile exclusively by using a wheelchair or walker or by
crawling. Respondents-parents live in a small mobile home with JF and three other
children, and they have a dog and cats. Their home is cluttered, and the presence of animal
fecal matter and urine on the floor is particularly problematic for JF because she is forced
to crawl around the home given the small size of the home and the clutter. This exposes
her to organisms that lead to frequent urinary tract infections, which, in turn, affects her
kidneys and is likely to hasten the time at which she will require a kidney transplant.2
According to the 2015 petition to remove JF from her home and place her in foster
care under the supervision of petitioner, the Department of Health and Human Services
(the Department), as far back as 2013, there was substantiated medical neglect on the part
2
When JF was removed from respondents’ home, she had medical laboratory work
performed that revealed that she had a urinary tract infection caused by two organisms that
are typically found inside the mouths of cats and dogs.
2
of respondents, including missed medical appointments and the failure to appropriately
care for JF’s medical needs. Later in 2013, physical neglect due to filthy home conditions
was substantiated. All the children were placed in foster care, but the case was terminated
in late 2014 following respondents’ eventual compliance with the trial court’s
requirements. In 2015, JF’s school contacted Child Protective Services (CPS), reporting
that JF often appeared at school with a foul smell of body odor and urine and that she often
ran out of catheters. JF was therefore prevented from catheterizing herself on a consistent
schedule, which is required to avoid urinary tract infections. A CPS caseworker went to
the home, where she saw animal feces on the hallway carpet, dirty dishes on the kitchen
counter and filling the sink, and random clutter throughout the home. There were pathways
through the clutter to allow the family to move about, but the paths were insufficiently
wide to allow navigation by a wheelchair or walker. The condition of the home required
JF to crawl in order to get from room to room. The bathroom toilet had fecal matter both
inside and outside of the toilet bowl, and the entire home reeked of human and animal
urine. There was no way for JF to avoid dragging her legs and feet through dirt and animal
feces. Respondents had missed JF’s nephrology appointments for the prior three months,
and medications for her kidneys had not been refilled for six months. She had not seen her
orthopedic specialist for almost a year, even though she was supposed to participate in
twice-weekly physical therapy sessions. Recommended six-month visits with a urologist
had also been missed.
The petition to remove JF from her home in this case was filed on October 29, 2015.
A probable-cause hearing was held on the same day, and the trial court authorized JF’s
removal. Preliminary hearings were then held on November 3, 2015, and November 17,
3
2015, and the trial court found probable cause to authorize the petition. On December 21,
2015, respondents admitted to failing to timely fill JF’s prescriptions, and the trial court
relied on these admissions to exercise jurisdiction. A dispositional hearing was held on
January 12, 2016, at which time a treatment plan was adopted and support services were
arranged. Review hearings were subsequently held on April 12, 2016, and on July 12,
2016.
At a hearing on October 18, 2016, it was reported that support services were
terminated because respondents had not made progress and the condition of their home had
not changed. The participating social services worker recommended termination of
parental rights because the conditions in the home had not significantly improved. JF’s
guardian ad litem also recommended terminating respondents’ parental rights. The trial
judge visited the home himself, although he did not make a record of his findings. He
authorized a petition for termination of parental rights, and hearings were held on May 10,
2017, June 20, 2017, and July 5, 2017. The trial judge indicated that he would like to speak
with JF. When asked if the parties had any objections, respondent-father’s attorney said
that he would “actually request it” and respondent-mother’s attorney said that he would
“encourage the court to talk with [JF].” The trial court spoke with JF off the record and
terminated respondents’ parental rights on August 7, 2017.
Respondents appealed in the Court of Appeals, contending that the trial court lacked
jurisdiction to terminate their parental rights because it had failed to follow court rules at
the adjudication stage of the proceedings, i.e., the trial court failed to inform respondents
of the rights they would be waiving if their pleas admitting to the jurisdiction of the court
were accepted, MCR 3.971(B)(3), and failed to inform them of the consequences of their
4
plea, MCR 3.971(B)(4). They also argued that the trial court erred by personally visiting
their home and interviewing the child.
The Court of Appeals affirmed the termination. In re Ferranti, unpublished per
curiam opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and
340118). It held that, even assuming that the trial court failed to follow the proper
procedures under former MCR 3.971(B)3 when taking respondents’ pleas, respondents
failed to timely appeal and could not collaterally attack the adjudication after the trial court
had terminated their parental rights. Id. at 6. The Court of Appeals also held that although
the trial court erred by personally visiting and viewing respondents’ home, reversal was
not warranted because respondents did not demonstrate that the error in any way affected
their substantial rights. Id. at 8-9. Finally, it held that respondents waived their challenge
to the court’s in camera interview of JF. Id. at 9. This Court subsequently ordered and
heard oral argument on whether to grant respondents’ application for leave to appeal. In
re Ferranti, 502 Mich. 906 (2018).
II. STANDARDS OF REVIEW
The collateral-attack rule is a common-law rule. Note, Collateral Bar and
Contempt: Challenging a Court Order After Disobeying It, 88 Cornell L Rev 215, 219 n 15
(2002). The interpretation and applicability of a common-law rule is a question of law that
is reviewed de novo. Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich. 304, 310; 901
NW2d 577 (2017). “[W]hen it comes to alteration of the common law, the traditional rule
3
See MCR 3.971(B), as amended March 28, 2018, 501 Mich ___ (2018), effective May 1,
2018.
5
must prevail absent compelling reasons for change.” Price v High Pointe Oil Co, Inc, 493
Mich. 238, 260; 828 NW2d 660 (2013). In addition, whether due-process concerns may
override the collateral-attack rule poses a question of constitutional law that is reviewed de
novo. Winkler v Marist Fathers of Detroit, Inc, 500 Mich. 327, 333; 901 NW2d 566 (2017).
Finally, the interpretation of statutes and court rules is also a question of law that is
reviewed de novo. People v Comer, 500 Mich. 278, 287; 901 NW2d 553 (2017).
III. ANALYSIS
A. HATCHER
The trial court clearly erred in failing to abide by MCR 3.971(B)(3) and (4) at the
adjudication proceeding, i.e., it failed to apprise respondents of their rights that they would
be waiving if their pleas admitting to the jurisdiction of the court were accepted and failed
to apprise them of the consequences of their pleas.4 However, respondents did not appeal
4
MCR 3.971 provides, in pertinent part:
(B) Advice of Rights and Possible Disposition. Before accepting a
plea of admission or plea of no contest, the court must advise the respondent
on the record or in a writing that is made a part of the file:
* * *
(3) that, if the court accepts the plea, the respondent will give up the
rights to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under
oath at the trial,
6
the adjudication until after the trial court had terminated their parental rights, nearly two
years after the adjudication. This Court has held that such collateral attacks are
impermissible. Hatcher, 443 Mich. at 437. That is, Hatcher held that a parent cannot wait
to challenge the adjudication until after the parent’s parental rights have been terminated.
As we recognized, “If such a delayed attack were always possible, decisions of the probate
court would forever remain open to attack, and no finality would be possible.” Id. at 440
(quotation marks and citation omitted). Accordingly, Hatcher held:
Our ruling today severs a party’s ability to challenge a probate court decision
years later in a collateral attack where a direct appeal was available. It should
provide repose to adoptive parents and others who rely upon the finality of
probate court decisions. [Id. at 444.]
As this Court recently explained in In re Sanders, 495 Mich. 394, 404; 852 NW2d
524 (2014):
In Michigan, child protective proceedings comprise two phases: the
adjudicative phase and the dispositional phase. Generally, a court determines
whether it can take jurisdiction over the child in the first place during the
adjudicative phase. Once the court has jurisdiction, it determines during the
dispositional phase what course of action will ensure the child’s safety and
well-being. [Citations omitted.]
Child protective proceedings begin with the filing of a petition. MCR 3.961. The trial
court must decide at that juncture whether to authorize the petition, which is done “upon a
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes
could give testimony in the respondent’s favor;
(4) of the consequences of the plea, including that the plea can later
be used as evidence in a proceeding to terminate parental rights if the
respondent is a parent.
7
showing of probable cause, unless waived, that one or more of the allegations in the petition
are true and fall within MCL 712A.2(b).” MCR 3.965(B)(12). If the court authorizes the
petition, the case then proceeds to the adjudicative phase, in which the court must
determine, by plea or trial, whether one or more of the statutory grounds alleged in the
petition have been proved by a preponderance of the evidence. MCR 3.971; MCR
3.972(E). Once the trial court determines that one or more of the statutory grounds alleged
in the petition have been proved by a preponderance of the evidence, the respondent has
been adjudicated and the court proceeds to the dispositional phase.
The dispositional phase consists of review hearings and orders imposing courses of
action that will ensure the child’s safety and well-being. “A dispositional hearing is
conducted to determine what measures the court will take with respect to a child properly
within its jurisdiction and, when applicable, against any adult, once the court has
determined following trial, plea of admission, or plea of no contest that one or more of the
statutory grounds alleged in the petition are true.” MCR 3.973(A). “[A]n order of
disposition placing a minor under the supervision of the court or removing the minor from
the home” is “appealable to the Court of Appeals by right[.]” Former MCR 3.993(A)(1).5
“[T]he dispositional phase ends with a permanency planning hearing, which results in
either the dismissal of the original petition and family reunification or the court’s ordering
[the Department] to file a petition for the termination of parental rights.” Sanders, 495
Mich. at 407.
5
See MCR 3.993(A)(1), as adopted February 4, 2003, 467 Mich. cccxxxiii (2003), effective
May 1, 2003.
8
As this Court has explained, “[T]he probate court’s subject matter jurisdiction is
established when the action is of a class that the court is authorized to adjudicate, and the
claim stated in the complaint is not clearly frivolous.” Hatcher, 443 Mich. at 437. That is,
formal jurisdiction is “established by pleadings, such as the petition,” not by the evidence.
Id. at 438; see also id. at 443 (“That the evidence failed to support the petition did not affect
the jurisdiction of the court, in the proper sense of the term, to hear the cause and to make
the order.”) (quotation marks and citation omitted).
What the court does in response to the petition represents the exercise of the court’s
jurisdiction. If the trial court errs while exercising its jurisdiction, this does not affect the
court’s subject matter jurisdiction itself. Id. at 437 (“Procedural errors that may have
occurred did not affect the probate court’s subject matter jurisdiction.”). As we explained
in Hatcher, 443 Mich. at 438-439:
Want of jurisdiction must be distinguished from error in the exercise
of jurisdiction. Where jurisdiction has once attached, mere errors or
irregularities in the proceedings, however grave, although they may render
the judgment erroneous and subject to be set aside in a proper proceeding for
that purpose, will not render the judgment void, and until set aside it is valid
and binding for all purposes and cannot be collaterally attacked. Error in the
determination of questions of law or fact upon which the court’s jurisdiction
in the particular case depends, the court having general jurisdiction of the
cause and the person, is error in the exercise of jurisdiction. Jurisdiction to
make a determination is not dependent upon the correctness of the
determination made. [Quotation marks and citations omitted.]
While “lack of subject matter jurisdiction can be collaterally attacked[,] . . . the exercise of
that jurisdiction can be challenged only on direct appeal.” Id. at 439. To be precise, the
exercise of jurisdiction “cannot . . . be challenged years later in a collateral attack.” Id. at
439-440 (quotation marks and citation omitted); see also In re Gazella, 264 Mich. App. 668,
9
679-680; 692 NW2d 708 (2005) (“Matters affecting the court’s exercise of its jurisdiction
may be challenged only on direct appeal of the jurisdictional decision, not by collateral
attack in a subsequent appeal of an order terminating parental rights.”);6 In re SLH, 277
Mich. App. 662, 668; 747 NW2d 547 (2008) (“Ordinarily, an adjudication cannot be
collaterally attacked following an order terminating parental rights.”).
In SLH, 277 Mich. App. at 668-669, 669 n 13, the Court of Appeals explained that
an adjudication challenge following an order terminating parental rights is not a collateral
attack when termination occurred at the initial disposition:
Ordinarily, an adjudication cannot be collaterally attacked following
an order terminating parental rights. That is true, however, only when a
termination occurs following the filing of a supplemental petition for
termination after the issuance of the initial dispositional order. If termination
occurs at the initial disposition as a result of a request for termination
contained in the original, or amended, petition for jurisdiction, then an attack
on the adjudication is direct and not collateral, as long as the appeal is from
an initial order of disposition containing both a finding that an adjudication
was held and a finding that the children came within the jurisdiction of the
court.13
13
. . . [B]ecause an initial order of disposition is the first order appealable as
of right, an appeal of the adjudication following the issuance of an initial
dispositional order is not a collateral attack on the initial adjudication, but a
direct appeal, notwithstanding that a termination of parental rights may have
occurred at the initial dispositional hearing.
6
In Gazella, 264 Mich. App. at 680, the Court of Appeals asserted:
As noted earlier, the original order of disposition entered June 2, 2003, and
filed June 5, 2003, stated that an adjudication was held, that the children were
found to come within the jurisdiction of the court, and that they were placed
in out-of-home care. That is the order that was appealable as of right to
challenge the adjudication. By not appealing that order, respondent lost her
right to challenge the court’s exercise of jurisdiction.
10
Essentially, what SLH explained is that if a respondent-parent appeals the adjudication at
the first opportunity that he or she can, this does not constitute a collateral attack.
In SLH, the trial court had orally determined that the children came within its
jurisdiction and then set the matter for a dispositional hearing without first entering an
adjudication order. Following the dispositional hearing, the trial court entered an order of
disposition and an order terminating parental rights on the same day, and both orders stated
that an adjudication was held and that the children were found to fall within the jurisdiction
of the court. The respondent-parent appealed, arguing that the trial court erred by taking
jurisdiction over the children. The Court of Appeals held that this did not constitute a
collateral attack because the contemporaneous order of disposition and order terminating
parental rights “contain the first appealable finding of adjudication that the children came
within the jurisdiction of the court.” Id. at 668.
In summation, an adjudication cannot be collaterally attacked following an order
terminating parental rights unless the termination occurred at the initial disposition. In the
instant case, however, the adjudication and the termination were separated by a lengthy
period of attempts at reunification. Therefore, respondents are barred from collaterally
attacking the adjudication.
At an adjudication hearing on December 21, 2015, respondents admitted to some of
the allegations in the petition, and on January 12, 2016, the court entered a dispositional
order. Additional dispositional hearings occurred, additional dispositional orders were
entered, and services were provided to respondents. On August 7, 2017, the trial court
granted the petition to terminate respondents’ parental rights. On September 8, 2017,
respondents appealed in the Court of Appeals, arguing, among other things, that the trial
11
court erred during the adjudication hearing by failing to advise respondents of their rights
as required by MCR 3.971.
Although the trial court certainly breached MCR 3.971 by not advising respondents
of their rights, respondents failed to timely raise this issue.7 Respondents should have
raised this issue after the adjudication and the first dispositional order entered on January
12, 2016. See former MCR 3.993(A)(1) (“[A]n order of disposition placing a minor under
the supervision of the court or removing the minor from the home” is “appealable to the
Court of Appeals by right[.]”).8 But, instead, respondents waited nearly two years to raise
7
Although the Department acknowledges that the trial court did not comply with MCR
3.971, contrary to the majority’s contention, the Department has not conceded that this
violated respondents’ due-process rights.
8
The majority takes issue with Hatcher’s statement that “[t]he respondent could have
appealed the court’s exercise of its statutory jurisdiction by challenging the sufficiency of
the petition,” Hatcher, 443 Mich. at 438, because, according to the majority, “[t]he error in
the adjudication occurred after the preliminary hearing, when the probable-cause
determination was made [and] the father could not have appealed an error that had yet to
occur.” However, given that Hatcher cited MCR 5.993, which was the predecessor of our
current MCR 3.993, immediately after the statement with which the majority takes issue,
it is more than reasonably clear that Hatcher was stating, in fact, that the respondent could
have filed an appeal of right after the adjudication, i.e., after the court entered an “order of
disposition placing a minor under the supervision of the court,” former MCR 3.993(A)(1).
The “sufficiency of the petition” remained at issue at that point because the probate court
presumably had relied on the allegations in the petition as well as the parents’ stipulation
that the child should become a temporary ward at the adjudication hearing. For these
reasons, I do not believe Hatcher was nonsensically suggesting that the father should have
appealed an error that had yet to occur.
In addition, and again contrary to the majority’s contention, I do not believe that
Hatcher suggested that “the father could have raised the adjudication error . . . in a motion
for rehearing from the order terminating parental rights,” which, as the majority itself
recognizes, would have been inconsistent with Hatcher’s ultimate conclusion. Rather,
Hatcher simply noted that “[a] parent is . . . entitled to request a rehearing not later than
twenty days after an order terminating parental rights and removing the child from parental
12
this issue.9 They waited until after several dispositional hearings had been held, after
several dispositional orders had been entered, after several months of services had been
provided, after JF had been living in foster care for almost two years, and after their
parental rights had been terminated nearly two years after adjudication.
Hatcher bars respondents’ collateral attack, as it should. Unlike the majority, I
would not overrule Hatcher because if there is any realm of law in which finality is critical,
it is with regard to child protective proceedings. The Department spent several years
attempting (tragically without success) to reunite respondents with their child. Parents who
have been given several years to rehabilitate themselves and who have continually failed
to do so should not be permitted to reinitiate the entire process by challenging aspects of
the adjudication that occurred at its very outset. It is simply not fair to children to require
them to endure this process again. It is also not fair to prospective adoptive parents. Given
that the dispositional phase of a child protective proceeding may proceed for several
custody” and that this statutory safeguard ensures the parent time to “challenge a court’s
exercise of its jurisdiction.” Hatcher, 443 Mich. at 436. Terminating parental rights
constitutes an exercise of the court’s jurisdiction and, as recognized by Hatcher, such an
exercise can be challenged by requesting a rehearing not later than 20 days after an order
terminating parental rights has been entered. Entering an order of adjudication also
constitutes an exercise of jurisdiction and, as also recognized by Hatcher, such an exercise
can be challenged by filing an appeal of right after the trial court enters its initial
dispositional order; it, however, cannot be challenged “years later in a collateral attack
where a direct appeal was available.” Id. at 444.
9
Although our court rules at that time did not require the trial court to inform-- much less
repeatedly inform-- respondents that they possessed an appeal of right from the initial
dispositional order, these rules did clearly provide for such an appeal of right, see former
MCR 3.993(A)(1), they did not provide for the additional and much-delayed appeal of right
sought in this case, and respondents were represented by counsel who was certainly aware
of all this.
13
months, or even several years, it is important to ensure, as Hatcher does, that errors made
during the adjudicative phase cannot result in all that was accomplished during the ensuing
dispositional phase to be undone. Not only would this result in wasted time, money,
resources, and public and private effort, but most importantly it would risk disrupting
whatever progress and rehabilitation the children might have made during that time.
Such a “do-over” would require the entire process to begin all over-- there would
have to be another adjudication hearing, another service plan would have to be created,
more dispositional hearings would have to be held, respondents would have to be given
further opportunities to comply with the service plan, and ultimately, more likely than not,
there would have to be another termination hearing. Yet, the end result would almost
inevitably be the same-- respondents’ parental rights would be terminated. The only
difference would be that the process would have taken twice as long. Instead of the
children having to go through this process, perhaps bouncing around from foster-care home
to foster-care home for two to three years, they would then have to endure this process for
four to six years. That, in my judgment, would be untenable and unacceptable.
The majority holds that Hatcher was wrongly decided because all of the cases on
which it relied were, in the majority’s view, finely distinguishable in the sense that they
were all civil cases in which a second action was started to undo a prior final order,10
10
For example, in Jackson City Bank & Trust Co v Fredrick, 271 Mich. 538; 260 N.W. 908
(1935), this Court held that a divorce judgment could not be collaterally attacked in a
subsequent action to set aside a conveyance of real estate. In addition, in Life Ins Co of
Detroit v Burton, 306 Mich. 81; 10 NW2d 315 (1943), this Court held that an order
reforming a surety bond could not be collaterally attacked in a subsequent action to set
aside a sheriff’s sale. Finally, in Edwards v Meinberg, 334 Mich. 355; 54 NW2d 684
(1952), this Court held that a judgment in an action in assumpsit on a promissory note could
14
whereas Hatcher and the present case are child protection cases in which the parents are
simply challenging a nonfinal order (the adjudication) after the first final order (the
termination order) has been entered. The majority is correct that generally a party
appealing a final order in a case can raise issues relating to prior nonfinal orders in that
same case. See Green v Ziegelman, 282 Mich. App. 292, 301 n 6; 767 NW2d 660 (2009)
(“[A] party claiming an appeal of right from a final order is free to raise issues on appeal
related to prior orders.”) (quotation marks and citation omitted). The majority is also
correct that an adjudication/initial dispositional order is not a final order and that the first
final order is the order terminating parental rights. See MCR 7.202(6)(a)(i) (defining “final
order” as “the first judgment or order that disposes of all the claims and adjudicates the
rights and liabilities of all the parties”). Nonetheless, the majority is seriously incorrect in
failing to recognize that although there is only one final order in a child protection case,
there are at least two orders that are appealable by right, i.e., the initial dispositional order
and the order terminating parental rights. Presumably, the initial dispositional order is
appealable by right at least in significant respect so that errors that have occurred during
the adjudication can be remedied in a timely fashion. This, once again, is the appropriate
time at which the parents should raise challenges they have regarding the adjudication.
A “collateral attack” is defined as “[a]n attack on a judgment in any manner other
than by action or proceeding, whose very purpose is to impeach or overturn the judgment;
or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an
not be collaterally attacked in a subsequent action for damages for abuse of process in
obtaining a writ of garnishment against the plaintiff’s wages to satisfy the original
judgment.
15
action or proceeding that has an independent purpose other than impeaching or overturning
the judgment.” Black’s Law Dictionary (6th ed). Former MCR 3.993(A)(1) provided that
“an order of disposition placing a minor under the supervision of the court” was appealable
by right. This appeal by right of the order of disposition placing a minor under the
supervision of the court is the proceeding whose “very purpose” is to overturn the decision
to place a minor under the supervision of the court, i.e., the adjudication. In other words,
this moment is the time to directly attack the adjudication. An order terminating parental
rights is also appealable by right. Former MCR 3.993(A)(2).11 However, this appeal by
right has an “independent purpose” other than overturning the adjudication, which is to
overturn the trial court’s actual decision to terminate parental rights. In other words, the
“very purpose” of this appeal is to attack the termination, not the adjudication. Therefore,
attacking the adjudication in the appeal of the termination order clearly constitutes a
“collateral”-- rather than a direct-- attack.12
The majority rationalizes its conclusion on the grounds that this Court has putatively
adopted numerous “exceptions” to Hatcher’s collateral-attack rule and, as a result, this
Court should now simply overrule the decision. Once again, I disagree. Indeed, I do not
11
The new court rules renumber this provision as MCR 3.993(A)(4), but the language is
unchanged.
12
Moreover, regardless of whether a posttermination challenge to the adjudication is
labeled a collateral attack or a direct attack, the critical point is that Hatcher simply requires
a timely appeal of the adjudication, which both parties and the amici agree benefits all
involved, including parents, children, and prospective adoptive parents, as well as the
public interests served by this process. Thus, even if one takes issue with characterizing a
posttermination challenge as a “collateral” challenge, as the majority does, that still does
not mean that we should abolish the Hatcher rule, which again simply requires a timely
appeal of the adjudication.
16
believe that any of the cases cited by the majority actually adopted any “exception” to the
Hatcher rule. In Sanders, 495 Mich. at 401, for example, Hatcher did not apply because
there had never been any adjudication of the respondent-father; the trial court had simply
applied the “one-parent” doctrine-- that is, the court entered dispositional orders affecting
the rights of both parents based on an adjudication solely of the mother. Given that the
respondent-father obviously could not have appealed that adjudication because he was not
a party, his challenge of that adjudication in his appeal after the termination of his parental
rights was not a collateral attack. See In re Kanjia, 308 Mich. App. 660, 670; 866 NW2d
862 (2014) (“Because respondent was never adjudicated, and in fact was not named as a
respondent in the trial court’s order of adjudication, it is difficult to see how he could have
appealed that order of adjudication.”). Because Sanders did not involve a collateral attack,
Sanders could not have given rise to an “exception” to Hatcher’s collateral-attack rule.
And, unlike the respondent in Sanders (as well as in Kanjia), respondents here were fully
adjudicated by the trial court; nothing precluded them from directly attacking the resultant
adjudication order.13
13
Similarly, In re Wangler, 498 Mich. 911, 911 (2015), also could not have created an
“exception” to Hatcher; it simply held that because “the court purported to issue
dispositional orders without first adjudicating the respondent-mother, the respondent-
mother’s appeal should not be regarded as an impermissible collateral attack on
jurisdiction.” In other words, Wangler held that because the respondent had never been
formally adjudicated, given that her adjudication had been held in abeyance, her challenge
of the adjudication proceeding following the termination of her parental rights was not a
collateral challenge. Again, unlike the respondent in Wangler, respondents in the instant
case were formally adjudicated; thus, their challenge of the adjudication following the
termination of their parental rights was a collateral challenge.
17
In addition, in In re Hudson, 483 Mich. 928 (2009), and In re Mitchell, 485 Mich.
922 (2009), this Court simply pointed out errors that were made during the adjudications;
these errors were not dispositive though because the trial court had also made errors during
the disposition stage, e.g., “the trial court committed clear error in finding that the
Department of Human Services presented clear and convincing evidence in support of the
statutory grounds for terminating the respondent-mother’s parental rights.” Hudson, 483
Mich. at 928. Therefore, I would hardly characterize these cases as having created
“exceptions” to Hatcher.14 Accordingly, contrary to the majority’s assertion, this Court
has not already carved out numerous “exceptions” to the Hatcher rule, and for the reasons
articulated throughout this dissent, I would not begin to do so today.
As noted earlier, the collateral-attack rule is a common-law rule, and “when it comes
to alteration of the common law, the traditional rule must prevail absent compelling reasons
for change.” Price, 493 Mich. at 260. Respondents’ predominant concern regarding
Hatcher’s collateral-attack rule is that it is unfair because trial courts are not advising
parents of their appellate rights following adjudication and that despite not knowing their
14
In re Mays, 490 Mich. 993, 994 (2012), also did not create an “exception” to Hatcher
because it merely held that “the trial court clearly erred in concluding that a statutory basis
existed for termination of respondent’s parental rights.” Indeed, Mays expressly stated that
it was not addressing the validity of the adjudication because that issue had not been timely
raised and expressly cited Hatcher in support of that position. Id. at 994 n 1. Similarly, In
re Mason, 486 Mich. 142; 782 NW2d 747 (2010), cannot be characterized as creating an
“exception” to Hatcher because it merely held that the Department did not sufficiently
involve the respondent in the reunification process; it did not even address the adjudication
process. Finally, In re Jones, 499 Mich. 862 (2016), also cannot be characterized as creating
an “exception” to Hatcher because all this Court did there was to enter an order consistent
with the parties’ joint motions requesting that we vacate the trial court’s order terminating
the respondent’s parental rights.
18
appellate rights, the collateral-attack rule punishes respondents for not appealing.
However, this Court just recently (and correctly, in my judgment) amended the court rules
to address that problem. Specifically, we just amended the court rules to require the trial
court to advise parents that they have an appeal of right from the initial dispositional order
and that if they do not challenge the adjudication at that point, they will not be able to
challenge it after their parental rights have been terminated, with two exceptions.15 At oral
argument, respondents’ counsel supported this idea: “I wholeheartedly agree with the court
rule and the world you want, which is early decisions, appeal them right away, and it
benefits everybody.” The Department and the Attorney General also indicated support for
this idea. Given our recent court rule amendments, the majority has set forth no reason, let
alone a “compelling reason,” to justify its present alteration of the common-law rule.
The majority asserts that overruling Hatcher will not cause “ ‘practical, real-world
dislocations.’ ” However, this is only true because of this Court’s recent court rule
amendments. In other words, if this Court had not amended the court rules to essentially
incorporate Hatcher into the court rules, the majority’s overruling of Hatcher would have
caused “ ‘practical, real-world dislocations,’ ” because, as discussed earlier, it would have
allowed parents to bring untimely challenges regarding the adjudication that, if successful,
would have required the process to begin all over again no matter how much time had
already elapsed attempting (unsuccessfully) to reunite the parents with their children.
15
Parents will still be able to challenge the adjudication in an appeal from the order
terminating their parental rights if their rights were terminated at the initial dispositional
hearing, which, as discussed earlier, is already allowed under SLH, 277 Mich. App. at 668-
669, and also if the court failed to inform them of their right to appeal, MCR 3.971(C);
MCR 3.972(G); MCR 3.973(H). I also support these exceptions.
19
I am not sure why the majority feels compelled to overrule Hatcher given that the
Court has now essentially incorporated it into our court rules. The majority says the
following about Hatcher:
Hatcher disrupts the careful balancing of interests in our juvenile code by
preventing judicial review of meritorious claims of defects in the
adjudication. That is, it prevents review of mistakes in the government
process that permanently separates a parent from a child. A parent’s only
remedy under Hatcher is by way of an interlocutory appeal, disincentivizing
him or her from timely cooperating with the Department and further delaying
a final determination. Hatcher disserves parents, their children, and the state.
It’s time to disavow it.
Yet we have just incorporated Hatcher into our court rules by adopting a new rule that
requires that parents timely raise challenges regarding the adjudication in their appeal of
right from the initial dispositional order. MCR 3.971(B)(8); MCR 3.972(F)(3); MCR
3.973(G)(4). I am not sure why the majority has these concerns regarding Hatcher but not
regarding the amended court rules. Regardless, I believe that the majority’s concerns
regarding Hatcher are unfounded.
To begin with, Hatcher does not “prevent[] judicial review of meritorious claims”;
rather, it merely requires that such claims be pursued in a timely manner, which is
consistent with the interests of all affected parties, including the children themselves. In
other words, there is an appropriate time to challenge the adjudication and an inappropriate
time, and waiting until years after the adjudication, and until after parental rights have been
terminated, fits squarely within the latter category.
Next, the majority contends that “[a] parent’s only remedy under Hatcher is by way
of an interlocutory appeal, disincentivizing him or her from timely cooperating with the
Department and further delaying a final determination.” But nothing about Hatcher
20
prevents a parent from both challenging an adjudication and at the same time abiding by
the court’s orders. There will be no disincentive, just as there is no particular or obvious
disincentive in the many cases in which an interlocutory appeal is filed. Furthermore, it is
certainly better to delay a final determination than it is to wait until after that determination
has been made and then require a complete “do-over.” Indeed, both parties at oral
argument agreed that immediately appealing the adjudication benefits everyone. As
respondents’ counsel explained: “[W]e don’t want adjudication appeals-- it’s not good for
the parents I represent to have an adjudicatory error two years later. And then, we have to
go back in time.” And as the Department further explained, witnesses may be difficult to
find, unavailable, or simply may not remember as well given the passage of time. For all
these reasons, I would not overrule Hatcher.
B. DUE PROCESS
This Court asked the parties to address “if Hatcher was correctly decided, whether
due process concerns may override the collateral bar rule . . . .” In re Ferranti, 502 Mich.
at 906. I would answer this inquiry in the negative. Hatcher expressly overruled Fritts v
Krugh, 354 Mich. 97; 92 NW2d 604 (1958), which “attempted to correct what it perceived
to be a gross lack of procedural due process” by “permitt[ing] [a] collateral attack on the
exercise of jurisdiction.” Hatcher, 443 Mich. at 440. By overruling Fritts, despite
recognizing that it involved a due-process challenge, Hatcher made it altogether clear that
it intended the collateral-attack rule to apply to due-process challenges.
21
Almost any violation of court rules can be couched in terms of a constitutional due-
process violation.16 For example, in this case, the majority holds that the trial court’s failure
to inform respondents of (a) the rights they would be waiving if their plea admitting to the
jurisdiction of the court was accepted, as is required by MCR 3.971(B)(3); and (b) the
consequences of their plea, as is required by MCR 3.971(B)(4), violated due process. See
also, e.g., Hudson, 483 Mich. at 929 (CORRIGAN, J., concurring) (concluding that the trial
court’s failure to advise the respondent of the consequences of her plea of admission,
contrary to MCR 3.971(B), and failure to appoint counsel at the respondent’s first
appearance, contrary to MCL 712A.17c, violated the respondent’s due-process rights).
Accordingly, if this Court were to adopt a due-process exception to the rule of Hatcher,
that exception would effectively swallow the entire rule. In other words, adopting a due-
process exception would be tantamount to overruling Hatcher.
Furthermore, not allowing parents to challenge the adjudication after parental rights
have been terminated can hardly be said to violate their due-process rights because they
have enjoyed a full opportunity to challenge the adjudication, from which determination
16
See In re Sanders, 495 Mich. at 458 (MARKMAN, J., dissenting):
Concerning due process, it is always possible to extend additional
procedural rights and entitlements to persons who come into contact with the
government, as criminal defendants, public employees, consumers of public
services, regulated parties, recipients of social-services benefits, or parents
of abused and neglected children. Additional hearings and additional appeals
can always be convened, more protective rules of evidence can always be
prescribed, and broader compliance with ever finer details of process can
always be required. There is simply no end to the argument that “fairness”
requires something more, and there is little specificity in the Due Process
Clause that either sustains or refutes most such arguments.
22
they possess an appeal of right. That they do not also enjoy the right to challenge the
adjudication after termination is simply a function of the fact that the state also possesses
an undeniable interest in seeking relief for the abused and neglected child in a timely and
reasonable manner.17
C. PRESERVATION AND PLAIN ERROR
This Court also asked the parties to address “what must a respondent do to preserve
for appeal any alleged errors in the adjudication” and “by what standard should courts
review the respondents’ challenge to the initial adjudication . . . .” In re Ferranti, 502 Mich.
at 906. I agree with the majority that “a party’s failure to timely assert a right in the trial
court generally means that any resulting error will be treated as ‘unpreserved’ if challenged
on appeal,” and it is undisputed that respondents did not challenge the adjudication at the
trial court level. To preserve for appeal an alleged error in the adjudication, the respondent
would have had to have raised the error at the adjudication hearing. People v Pipes, 475
17
See Mathews v Eldridge, 424 U.S. 319, 333, 335; 96 S. Ct. 893; 47 L. Ed. 2d 18 (1976),
which provides that the following factors should generally be considered when determining
“what process is due”:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
While respondents’ “private interest” in their parenthood is undeniably of the highest order,
there is no obvious “risk of an erroneous deprivation” of this interest by the requirement
that an appeal taken to rectify errors occurring during the adjudication be undertaken in a
timely manner. Furthermore, the “Government’s interest” in the circumstances of the
abused and neglected child is also of the highest order.
23
Mich. 267, 277; 715 NW2d 290 (2006) (“In order to properly preserve an issue for appeal,
a defendant must raise objections at a time when the trial court has an opportunity to correct
the error . . . .”) (quotation marks and citation omitted). As this Court explained:
Any other conclusion would be contrary to the rule that defendants
cannot “harbor error as an appellate parachute.” “The rule that issues for
appeal must be preserved in the record by notation of objection is a sound
one,” and that rule is totally eviscerated in situations, such as this, where
defendants never address appealable issues with the trial court. [Id. at 278
n 39 (citations omitted).]
If the respondent does not properly preserve the issue, this Court should review the
respondent’s challenge to the initial adjudication for plain error. See Hudson, 483 Mich. at
928 (“The trial court also committed plain error, People v Carines, 460 Mich. 750, 763
(1999), in failing to . . . timely appoint counsel in violation of MCL 712A.17c(4) and (5),
MCR 3.915(B)(1), MCR 3.965(B)(5), and MCR 3.974(B)(3)(a)(i), and in failing to advise
the respondent that her plea could later be used in a proceeding to terminate parental rights
in violation of MCR 3.917(B)(4).”); Mitchell, 485 Mich. at 922 (“[T]he trial court
committed plain error, People v Carines, 460 Mich. 750, 763 (1999), in failing to timely
appoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3.915(B)(1), MCR
3.965(B)(5), and MCR 3.974(B)(3)(a)(i), and in failing to advise the respondent that his
plea could later be used in a proceeding to terminate his parental rights in violation of MCR
3.971(B)(4).”).
In Carines, 460 Mich. at 763, this Court held:
To avoid forfeiture under the plain error rule, three requirements must be
met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious,
3) and the plain error affected substantial rights. The third requirement
generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings. “It is the defendant rather than the
24
Government who bears the burden of persuasion with respect to prejudice.”
Finally, once a defendant satisfies these three requirements, an appellate
court must exercise its discretion in deciding whether to reverse. Reversal is
warranted only when the plain, forfeited error resulted in the conviction of
an actually innocent defendant or when an error “ ‘seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings’ independent
of the defendant’s innocence.” [Citations omitted; alteration in original.]
In this context, it would be difficult for a respondent to prove that an error affected the
outcome of the lower court proceedings. For example, in the instant case, the errors were
that the trial court failed to inform respondents of (a) the rights that they would be waiving
if their plea admitting to the jurisdiction of the court was accepted, as is required by MCR
3.971(B)(3); and (b) the consequences of their plea, as is required by MCR 3.971(B)(4).
Although these were certainly errors and were plain errors, I do not understand how these
errors conceivably affected the outcome of the proceedings. Respondents have nowhere
alleged that they would not have pleaded to the allegations in the petition if the trial court
had properly advised them of the rights that they were waiving and/or of the consequences
of their plea.18 And even if they had so alleged, I do not understand how the outcome of
the proceedings would have been altered because, at most, an adjudication trial would have
been conducted and the trial court likely would have found again that one or more of the
statutory grounds alleged in the petition had been proved by a preponderance of the
evidence, i.e., that respondents were unfit.19 There is simply no serious question that even
18
Furthermore, respondents were actually advised of many of their rights at the preliminary
hearing on October 29, 2015, and were both represented by counsel at every phase of the
proceedings.
19
The majority asserts that “[t]his misses the point” because “the constitutional
deficiencies here are not forgiven by what might have transpired at trial.” Respectfully, I
believe it is the majority that errs because it is well established that parties are not entitled
25
absent respondents’ plea, the trial court would have adjudicated respondents, the
dispositional phase would have proceeded in the same way, and respondents’ parental
rights would have been terminated. Indeed, respondents do not even dispute the sufficiency
of the evidence in support of the adjudication or of the termination of their parental rights.
Therefore, in my view, although the majority overrules Hatcher, respondents are still not
entitled to relief.
D. HOME VISIT
This case also involves two non-Hatcher issues. The first such issue we asked the
parties to address is “whether a trial court is permitted to visit a respondent’s home to
observe its condition, and, if so, what parameters should apply to doing so[.]” In re
Ferranti, 502 Mich. at 906. The parties agree that a trial court is not permitted to visit a
respondent’s home to observe its condition. MCR 2.507(D), the rule allowing under
certain circumstances the court’s view of “property or a place where a material event
occurred,” is not among the rules applicable to child protective proceedings. MCR
3.923(A), which does apply, provides:
If at any time the court believes that the evidence has not been fully
developed, it may:
(1) examine a witness,
(2) call a witness, or
to relief for unpreserved constitutional errors unless they can establish that “the error
affected the outcome of the lower court proceedings,” Carines, 460 Mich. at 763, and the
latter determination is necessarily made by comparing the flawed proceeding with a
hypothetical unflawed proceeding, i.e., by inquiring as to “what might have transpired at
trial.”
26
(3) adjourn the matter before the court, and
(a) cause service of process on additional witnesses, or
(b) order production of other evidence.
Note that the court rule does not allow the court to view a home. For these reasons, I agree
with the parties and the Court of Appeals that the trial court erred by visiting respondent’s
home.
However, I further agree with the Court of Appeals that this error was harmless.
Respondents did not object to the error, and therefore the plain-error test applies. See
Carines, 460 Mich. at 763-764. Even assuming that there was error and that the error was
plain, respondents are not entitled to relief because they were not prejudiced as a result of
the error. As the Court of Appeals explained:
[G]iven the trial court’s reliance on the testimony of witnesses who described
both the historical condition of the home, the services provided, and the
current condition of the home, as well as the effect of the condition of the
home on JF’s medical condition, it does not appear that the trial court’s visit
to the home affected the outcome of the proceedings. The court found that
“the many professionals unanimously agreed that the house was unhygienic
and was probably not going to improve” even though the condition of the
home was “not as atrociously bad as it was.” The trial court’s lone reference
to the court’s viewing of the home was that
it is not where a person with [spina bifida] will thrive. [JF]
chooses to crawl for locomotion when she is in the home and
the home will never be clean enough for her to avoid infections.
This finding is amply supported by the testimony of the witnesses with
respect to the condition of the home and its effect on JF’s medical condition,
and the trial court’s statement regarding its view of the home reflects that the
court’s viewing of the home confirmed the witnesses’ testimony. Under
these circumstances, respondents have failed to demonstrate that the trial
27
court’s error in visiting the home affected their substantial rights. [Ferranti,
unpub op at 8-9.]
I agree with the Court of Appeals.
E. INTERVIEW OF THE CHILD
The other non-Hatcher issue we asked the parties to address concerns “whether a
trial court may interview a child who is the subject of child protective proceedings in
chambers, and, if so, what parameters should apply to doing so.” In re Ferranti, 502 Mich.
at 906. Again, the parties agree that a trial court may not interview in chambers a child
who is the subject of child protective proceedings. See In re HRC, 286 Mich. App. 444; 781
NW2d 105 (2009). While the court rules permit the use of in camera interviews for the
limited purpose of determining a child’s parental preference in child custody cases, see
MCR 3.210(C)(5), they do not permit the use of in camera interviews in child protective
cases.20 Accordingly, the trial court erred by conducting an in camera interview of the
child.
However, I agree with the Court of Appeals that respondents waived this issue. At
one point, respondent-father’s counsel asked respondent-father, “Are you asking the Court
to interview [JF] prior to making a decision on termination?” and respondent-father
answered, “I would ask that, yes.” Subsequently, after both parties indicated that they had
20
Perhaps this is because while the Child Custody Act, MCL 722.21 et seq., requires the
trial court in custody cases to take a child’s preference into consideration as long as the
court considers the child to be of sufficient age to express a preference, MCL 722.23(i),
the juvenile code does not require a trial court to consider a child’s preference in a
termination-of-parental-rights case. This may have something to do with the nature of
these proceedings. A termination of parental rights is permanent, whereas a custody order
can be modified.
28
no further proofs, the trial judge indicated that he was considering speaking with JF but
admitted that there was no statute that provides for such an interview, and he asked the
parties if they had any objections. In response, respondent-father’s counsel stated, “I would
actually request it,” and respondent-mother’s counsel stated, “We encourage the court to
talk with [JF].”
I also believe the parties were well aware that the judge was planning on speaking
with JF in chambers. There was never any mention of her testifying in court; rather, the
matter was always stated in terms of the judge “interviewing,” “speaking with,” and
“talking with” JF. Furthermore, the guardian ad litem asked the judge if he would be
interviewing JF “here at the court or at the Lutheran [family services office]?” And the
judge responded, “[L]et’s go to the back chambers.” In light of these statements, I believe
it was reasonably clear that the judge planned to interview JF off the record in his chambers,
and the parties not only did not object, but they affirmatively encouraged the judge to talk
with JF. Therefore, the issue was waived, and “[o]ne who waives his rights under a rule
may not then seek appellate review of a claimed deprivation of those rights, for his waiver
has extinguished any error.” People v Carter, 462 Mich. 206, 215; 612 NW2d 144 (2000)
(quotation marks and citation omitted).
IV. CONCLUSION
Because I believe the Court of Appeals correctly held that: (a) respondents cannot
collaterally attack the instant adjudication after their parental rights have been terminated,
(b) respondents waived the issue pertaining to the interview of the child, and (c) any error
in visiting respondents’ home was harmless, I would affirm the judgment of the Court of
29
Appeals. In addition, and unlike the majority, I would not overrule Hatcher, even if in
light of our new court rules, the impact of so doing would only be upon this single case,
this single child, JF alone. Just as the new court rules reasonably balance the rights of
parents and children, and afford a clear opportunity for a fresh start for the abused or
neglected child, so too did the prior court rules; it is not right that JF alone should be made
subject to a third court rule regime, an altogether singular regime, a regime that does not,
in my judgment, reasonably balance the interests of parent and child, a regime in which,
before JF’s fresh start can begin, a lengthy re-do of an already lengthy and fair legal process
must first proceed because of the failure of respondents-- already deemed by a court of law
to have acted neglectfully-- to have abided by the law in pursuing a timely appeal, much
less to have corrected their maltreatment of JF. Thus, in a realm of the law in which
reasonable expedition of decision-making has always been thought by the judiciary to be
paramount, the majority imposes in this single case a process that is reflective of our legal
system at its most unnecessarily drawn out and dilatory. For all the reasons set forth in this
opinion, I respectfully dissent.21
Stephen J. Markman
Brian K. Zahra
CAVANAGH, J., did not participate in the disposition of this case because the Court
considered it before she assumed office.
21
Notably, the majority overrules Hatcher, reverses the judgment of the Court of Appeals,
and remands to the trial court for further proceedings without providing any guidance
concerning what number of years of further proceedings are required. The majority fails
even to make clear whether JF can remain in foster care or whether she, a child suffering
from spina bifida and chronic kidney disease, must now be returned to respondents’ home,
one in which she has already suffered considerably from medical and physical neglect.
30