in Re K R Fisher Minor ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re K. R. FISHER, Minor. July 9, 2020
No. 351947
Genesee Circuit Court
Family Division
LC No. 07-122616-NA
Before: BORRELLO, P.J., and RONAYNE KRAUSE and RIORDAN, JJ.
PER CURIAM.
Respondent-mother appeals as of right the trial court’s order to remove her minor child,
KF, from respondent’s care and take KF into protective custody that was entered following the
preliminary hearing at which mother was not present. For the reasons set forth in this opinion, we
vacate the order removing KF from mother’s care.
I. BACKGROUND
Respondent and KF came to the attention of the Department of Health and Human Services
(DHHS) and Child Protective Services (CPS) when respondent sought assistance with preventing
a pending eviction where she owed over $2,000 in rent to her landlord. An investigation ensued
during which mother tested positive for controlled substances.
On November 4, 2019, CPS investigator Benjamin Nichols filed a petition requesting that
the court take jurisdiction over KF and remove the minor child from respondent’s care to be
temporarily placed with the DHHS. On the same day, a preliminary hearing was scheduled for
2:00 p.m. on November 13, 2019, and a notice of hearing for the November 13 preliminary hearing
was issued. Also, on November 4, 2019, according to the proof of service contained within the
lower court file, this notice of the November 13 hearing was served only on the prosecuting
attorney and the DHHS.
The preliminary hearing was held on November 13, 2019. For reasons not evident from
the record, the hearing did not commence until 4:08 p.m. Respondent was not present, although
an attorney was present who had been appointed to represent respondent. The referee inquired of
Nichols about whether respondent had received notice:
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The Referee: All right. Mr. Nichols what was—what notice was given to
mother to try and get her to appear today?
Mr. Nichols: I was speaking with her yesterday. I was wanting—I was
trying to have—schedule an FTM (Family Time Meeting) with her so I could go
over what would be happening at court and try and see if she could identify any
possible relatives since we were seeking to—for removal for [KF] there. And she
was not willing to cooperate, tell me where she was, what the address was, you
know, name, phone number, any kind of identifying information—
* * *
Mr. Nichols: —in court. And today, I called her, texted her, and she was
aware. About noon I got ahold of her, and she was aware that court was today and
she said she didn’t want to come. She wanted to reschedule. She said she didn’t
have time to come today.
The Referee: Okay. The Court will indicate she’s also contacted the—my
assistant and said she didn’t understand why her appointment couldn’t be
rescheduled, but today is the date and time given for notice, so.
The referee proceeded with the preliminary hearing. An order authorizing the petition and
removing KF from respondent’s care was entered. This order further provided that the referee had
found that notice of the hearing had been given as required by law. Additionally, an order was
entered authorizing the DHHS or any peace officer to take KF into protective custody.
II. DUE PROCESS
On appeal, respondent argues that she was denied her right to procedural due process when
the preliminary hearing, which resulted in KF being removed from respondent’s care, was held in
respondent’s absence without providing her with adequate notice of the hearing.
A. STANDARD OF REVIEW
We review de novo, as a question of constitutional law, whether child protective
proceedings complied with a parent’s right to procedural due process. In re Sanders, 495 Mich.
394, 403-404; 852 NW2d 524 (2014). “The interpretation and application of statutes and court
rules are also reviewed de novo.” Id.
B. ANALYSIS
Natural parents possess a fundamental liberty interest, protected by the Fourteenth
Amendment, in the “care, custody, and management of their child.” Santosky v Kramer, 455 U.S.
745, 753; 102 S. Ct. 1388; 71 L. Ed. 2d 599 (1982); see also In re Sanders, 495 Mich. at 409 (stating
that among the fundamental rights protected by the Fourteenth Amendment “is the right of parents
to make decisions concerning the care, custody, and control of their children”). It is true of course
that a “parent’s right to control the custody and care of her children is not absolute, as the state has
a legitimate interest in protecting the moral, emotional, mental, and physical welfare of the minor
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and in some circumstances neglectful parents may be separated from their children.” In re
Sanders, 495 Mich. at 409-410, quoting Stanley v Illinois, 405 U.S. 645, 652; 92 S. Ct. 1208; 31 L
Ed 2d 551 (1972) (quotation marks omitted). However, a parent must be provided with adequate
due process before the state may interfere with the parent’s fundamental right in the care, custody,
and control of the child. Santosky, 455 U.S. at 753 (“[S]tate intervention to terminate the
relationship between [a parent] and [the] child must be accomplished by procedures meeting the
requisites of the Due Process Clause.”) (quotation marks and citations omitted; alterations in
original); In re Sanders, 495 Mich. at 410 (“[D]ue process demands that minimal procedural
protections be afforded an individual before the state can burden a fundamental right.”).
Although the concept of due process is somewhat difficult to define with precision, see
Lassiter v Dep’t of Social Servs, 452 U.S. 18, 24; 101 S. Ct. 2153; 68 L. Ed. 2d 640 (1981), it is
axiomatic that due process requires “at a minimum . . . that deprivation of life, liberty or property
by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the
case,” Mullane v Central Hanover Bank & Trust Co, 339 U.S. 306, 313; 70 S. Ct. 652; 94 L. Ed. 865
(1950); see also Bonner v City of Brighton, 495 Mich. 209, 235; 848 NW2d 380 (2014) (citing
Mullane); In re Rood, 483 Mich. 73, 92; 763 NW2d 587 (2009) (opinion by CORRIGAN, J) (citing
Mullane regarding the due-process requirement of notice in the context of child-protective
proceedings). It is “plain beyond the need for multiple citation that a natural parent’s desire for
and right to the companionship, care, custody, and management of his or her children is an interest
far more precious than any property right.” Santosky, 455 U.S. at 758-759 (quotation marks and
citation omitted). When the state seeks to interfere with these important familial relationships, the
procedures employed must be “fundamentally fair.” Id. at 753-754; see also In re Brock, 442 Mich.
101, 111; 499 NW2d 752 (1993).
“An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane, 339 U.S. at 314. The “right to be heard has little reality or worth unless one
is informed that the matter is pending and can choose for himself whether to appear or default,
acquiesce or contest.” Id. Furthermore, “[t]he notice must be of such nature as reasonably to
convey the required information, and it must afford a reasonable time for those interested to make
their appearance. But if with due regard for the practicalities and peculiarities of the case these
conditions are reasonably met the constitutional requirements are satisfied. Id. at 314-315
(citations omitted; emphasis added).
At issue in this case is the lack of notice respondent received prior to the date of the
preliminary hearing. MCR 3.965(B)(1) addresses issues of notice and attendance of respondent
parents regarding the preliminary hearing, stating as follows:
The court must determine if the parent, guardian, or legal custodian has been
notified, and if the lawyer-guardian ad litem for the child is present. The
preliminary hearing may be adjourned for the purpose of securing the appearance
of an attorney, parent, guardian, or legal custodian or may be conducted in the
absence of the parent, guardian, or legal custodian if notice has been given or if the
court finds that a reasonable attempt to give notice was made.
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Furthermore, “the court shall ensure” that a respondent in a child protective proceeding is
“notified of each hearing.” MCR 3.921(B)(1)(a). MCR 3.920(B)(2)(b) provides in relevant part
that “[i]n a child protective proceeding, a summons must be served on any respondent and any
nonrespondent parent.” MCR 3.920(B) further provides:
(3) Content. The summons must direct the person to whom it is addressed
to appear at a time and place specified by the court and must:
(a) identify the nature of hearing;
(b) explain the right to an attorney and the right to trial by judge or jury,
including, where appropriate, that there is no right to a jury at a termination hearing;
(c) if the summons is for a child protective proceeding, include a notice that
the hearings could result in termination of parental rights; and
(d) have a copy of the petition attached.
(4) Manner of Serving Summons.
(a) Except as provided in subrule (B)(4)(b), a summons required under
subrule (B)(2) must be served by delivering the summons to the party personally.
(b) If the court finds, on the basis of testimony or a motion and affidavit,
that personal service of the summons is impracticable or cannot be achieved, the
court may by ex parte order direct that it be served in any manner reasonably
calculated to give notice of the proceedings and an opportunity to be heard,
including publication.
(c) If personal service of a summons is not required, the court may direct
that it be served in a manner reasonably calculated to provide notice.
(5) Time of Service.
(a) A summons shall be personally served at least:
(i) 14 days before hearing on a petition that seeks to terminate parental rights
or a permanency planning hearing,
(ii) 7 days before trial or a child protective dispositional review hearing, or
(iii) 3 days before any other hearing.
(b) If the summons is served by registered mail, it must be sent at least 7
days earlier than subrule (a) requires for personal service of a summons if the party
to be served resides in Michigan, or 14 days earlier than required by subrule (a) if
the party to be served resides outside Michigan.
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(c) If service is by publication, the published notice must appear in a
newspaper in the county where the party resides, if known, and, if not, in the county
where the action is pending. The published notice need not include the petition
itself. The notice must be published at least once 21 days before a hearing specified
in subrule (a)(i), 14 days before trial or a hearing specified in subrule (a)(ii), or 7
days before any other hearing.
Additionally, MCR 3.920(D) involves notice of hearings and provides as follows:
(D) Notice of Hearing.
(1) General. Notice of a hearing must be given in writing or on the record
at least 7 days before the hearing except as provided in subrules (D)(2) and (D)(3),
or as otherwise provided in the rules.
(2) Preliminary Hearing; Emergency Removal Hearing.
(a) When a juvenile is detained, notice of the preliminary hearing must be
given to the juvenile and to the parent of the juvenile as soon as the hearing is
scheduled. The notice may be in person, in writing, on the record, or by telephone.
(b) When a child is placed outside the home, notice of the preliminary
hearing or an emergency removal hearing under MCR 3.974(C)(3) must be given
to the parent of the child as soon as the hearing is scheduled. The notice may be in
person, in writing, on the record, or by telephone.
(3) Permanency Planning Hearing; Termination Proceedings.
(a) Notice of a permanency planning hearing must be given in writing at
least 14 days before the hearing.
(b) Notice of a hearing on a petition requesting termination of parental rights
in a child protective proceeding must be given in writing at least 14 days before the
hearing.
(4) Failure to Appear. When a party fails to appear in response to a notice
of hearing, the court may order the party’s appearance by summons or subpoena.
In this case, the record makes clear that respondent was never served prior to the
preliminary hearing with written notice of the preliminary hearing or a summons. Notice of the
hearing was sent to the DHHS and the prosecutor, and from what we can glean from Nichols’
testimony, respondent only received actual notice of the preliminary hearing via telephone at
approximately noon on the day of the hearing. This unexplained lack of notice to respondent
occurred even though the preliminary hearing had been scheduled on the court’s calendar nine
days before it occurred. The record also reflects that respondent contacted the referee directly and
that the referee denied her request to adjourn the hearing to a later date.
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Contrary to petitioner’s characterization on appeal of Nichols’ description of his telephone
conversation with respondent that occurred on the day before the hearing, there is nothing in the
record to indicated that Nichols actually informed respondent during that conversation of the court
proceeding that was scheduled to occur on November 13 without resorting to speculation and
conjecture. Nichols specifically told the referee at the preliminary hearing that on the previous
day, he had spoken to respondent in an attempt to set up a family team meeting so he “could go
over what would be happening at court.” In other words, Nichols explained to the referee that his
reason for trying to schedule a family team meeting was to discuss what would occur in court but
there is nothing in the record before us from which we can glean that Nichols made this reason
apparent to respondent. Instead, he texted and called her on the day of the hearing to inform her
of the hearing that was scheduled, and he eventually succeeded in giving her notice that day,
approximately two hours before the hearing was scheduled to begin.
Turning first to the relevant court rules, MCR 3.920(D)(2)(b) permits notice of a
preliminary hearing to be given by telephone but also requires notice of the preliminary hearing to
be given as soon as the hearing is scheduled. The referee determined that notice had been given
to respondent and that the hearing could therefore proceed in respondent’s absence. MCR
3.965(B)(1); MCR 3.921(B)(1)(a).
However, the question becomes whether two hours oral notice of the hearing was
fundamentally fair and provided respondent with constitutionally sufficient due process under the
circumstances present here, see Santosky, 455 U.S. at 753-754; Mullane, 339 U.S. at 313-315, where
the hearing had been scheduled nine days earlier and Nichols had spoken with respondent by
telephone the previous day without specifically notifying her of the hearing that was scheduled to
occur the next day, instead waiting until essentially the last minute to ensure that respondent
received some degree of notice.
To determine what constitutes sufficient due process before a parent’s fundamental liberty
interest in the care, custody, and control of the parent’s child is burdened by the state, we apply
the three factors enunciated by the United States Supreme Court in Mathews v Eldridge, 424 U.S.
319, 335; 96 S. Ct. 893; 47 L. Ed. 2d 18 (1976). See In re Sanders, 495 Mich. at 410-411.
“[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: 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.” [In re Sanders, 495 Mich. at
410-411, quoting Mathews, 424 U.S. at 335 (alteration in original).]
With respect to the first factor, a parent’s interest in the care, custody, and control of the
parent’s child is, as we have already noted, one of the fundamental liberty interests protected by
the Fourteenth Amendment and an interest that is obviously more important than any mere
property interest. Santosky, 455 U.S. at 753, 758-759; In re Sanders, 495 Mich. at 409. The
importance of a parent’s private interest in maintaining the fundamental right to direct the care,
custody, and control of his or her child without governmental interference, as well as the parent’s
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interest in the accuracy and justice of a decision affecting that fundamental right is “commanding,”
see Santosky, 455 U.S. at 758-759, and “cannot be overstated,” In re Sanders, 495 Mich. at 415.
With respect to the second factor, the “essence of due process is the requirement that a
person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet
it.” Bonner, 495 Mich. at 238 (quotation marks and citation omitted; alteration in original). Here,
the preliminary hearing at issue was directed at deciding both whether the petition would be
authorized and whether KF should be removed from respondent’s care at that juncture, clearly
presenting the potential of a serious loss for respondent in the form of separation from her child
for at least some period of time. See Stanley, 405 U.S. at 647 (“This Court has not, however,
embraced the general proposition that a wrong may be done if it can be undone. Surely, in the
case before us, if there is delay between the doing and the undoing petitioner suffers from the
deprivation of his children, and the children suffer from uncertainty and dislocation.”) (citation
omitted).
The “right to be heard has little reality or worth unless one is informed that the matter is
pending,” and adequate notice “must afford a reasonable time for those interested to make their
appearance.” Mullane, 339 U.S. at 314 (emphasis added). We question whether such short notice
as occurred in the instant case would be considered even remotely reasonable had it occurred in
any context other than a child-protective proceeding, proceedings in which trial courts,
prosecutors, and the DHHS are notorious for holding parents to unrealistic—and often unfair—
expectations of conscientiousness while excusing without question the lack of diligence or
conscientiousness by DHHS workers. See, e.g., In re Rood, 483 Mich. at 107-109, 111 (opinion
by CORRIGAN, J.) (noting that the trial court’s and DHHS’s “compliance with the relevant laws
and regulations was sorely lacking,” describing the DHHS’s lackluster efforts to involve the
respondent, and noting that the trial court “excused” the DHHS’s “failures of notice and
communication” even though the trial court held the respondent accountable for his own
communication shortcomings). This case provides another perfect example. Nichols failed to give
respondent notice of the hearing when he was able to speak with her the day before the hearing
and instead waited until the day of the hearing to try again. 1 Yet, petitioner on appeal faults
respondent for not immediately arranging to attend the hearing on mere hours’ notice and failing
to provide a “good reason” for being unable to do so. This argument runs counter to the reality
that petitioner had a responsibility to “make reasonable attempts to provide adequate notice” of
the preliminary hearing. See id. at 113-114; see also In re Adair, 191 Mich. App. 710, 715; 478
NW2d 667 (1991) (“The DSS, as the petitioning party, is charged with providing that service of
process is accomplished in accordance with the court rules.”); MCR 3.921(B)(1)(a); MCR
3.965(B)(1).
1
Additionally, the referee made no inquiry into why DHHS and the prosecutor were served but
not respondent. Further, the referee did not make a meaningful record as to its basis for concluding
that respondent’s due process rights were not violated by the complete lack of written notice to
respondent.
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Furthermore, although respondent was represented by an attorney at the preliminary
hearing, there is no indication in the record that the attorney had met with respondent beforehand.2
In the absence of any discussions, we conclude that representation under such circumstances was,
at best, constitutionally insufficient. See In re Adair, 191 Mich. App. at 711-715 (reversing the trial
court’s order placing the respondent-mother’s minor children in temporary foster care based on
the lack of proper notice to the respondent, and the trial court’s failure to find that reasonable
efforts had been made to locate respondent-mother before alternative service by publication was
permitted, despite the fact that the respondent was represented by an attorney at the various
proceedings from which she was absent); cf. also Geders v United States, 425 U.S. 80, 88; 96 S. Ct.
1330; 47 L. Ed. 2d 592 (1976) (discussing the importance of the discussions and consultations
between client and attorney during the course of the proceedings for strategizing and sharing
information).
Providing respondent with two hours’ notice of the hearing, when the record reflects that
notice could have been provided the previous day during Nichols’ telephone conversation with
respondent, does not appear to be notice that provided respondent with a reasonable time in which
to respond to the petition, Mullane, 339 U.S. at 314, or a meaningful opportunity to participate in
the preliminary hearing that was conducted in respondent’s absence and that ended with an order
to remove KF from the care of respondent and thereby infringed on respondent’s right to the
companionship, care, custody, and management of KF for at least some period of time, Santosky,
455 U.S. at 758-759; Armstrong v Manzo, 380 U.S. 545, 551, 552; 85 S. Ct. 1187; 14 L. Ed. 2d 62
(1965) (stating that the Constitution requires “timely notice” and that the “ ‘opportunity to be
heard’ ” that is a fundamental requirement of due process “must be granted at a meaningful time
and in a meaningful manner”) (citation omitted).
Under the circumstances present here, the risk of an erroneous deprivation of respondent’s
right to the care, custody, and control of KF—even if the removal does not end in the permanent
termination of her parental rights—and the high value of taking the simple additional step of
informing respondent of the hearing while talking to her on the telephone the previous day, weigh
heavily in favor of providing this additional reasonable effort toward giving adequate notice and
concluding that respondent was not provided with constitutionally sufficient due process.
Next, we consider the third factor involving the governmental interest. When the parent
has not yet been adjudicated unfit, which was the case here with respondent, the state’s interest is
also in preserving the familial relationship and is perfectly aligned with the parent’s interest; at
this stage, there is no conflict between this interest of the state and its parallel interest in protecting
the child. In re Sanders, 495 Mich. at 415-417; see also 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.”) (emphasis added). Moreover, no additional cost or financial burden
would have been incurred by the government had Nichols made the slight additional effort that
2
Again, the referee did not make a record as to whether counsel had met with or discussed the
matter with respondent prior to the hearing. On this paltry record, we are forced to presume that
counsel and respondent never engaged in any manner of discussion prior to the hearing.
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would have been necessary to have provided respondent with notice on the day before the hearing
in this case. Had Nichols been trying diligently to contact respondent without success, reaching
her only for the first time on the day of the hearing, our analysis would be different. But that is
not what happened here. According to the record, Nichols spoke with respondent the day before
the hearing but did not inform her of the scheduled hearing, instead waiting until the day of the
hearing to try to inform her. Further, there is no evidence in the record that additional steps were
taken to give respondent notice.
In light of the important private interest at stake, which coincides with the government’s
important interests of protecting children and preferring to keep family relationships intact, the
importance and value of ensuring that adequate notice is given to respondent-parents in child-
protective proceedings, and the relatively minimal effort that it would have taken to give
respondent in this case more than a mere two hours’ notice, we conclude that respondent was not
provided with constitutionally sufficient due process under these circumstances. The process
given to respondent in this case before removing her child was not “fundamentally fair.” Santosky,
455 U.S. at 753-754; In re Brock, 442 Mich. at 111. “[W]hen notice is a person’s due, process which
is a mere gesture is not due process.” Mullane, 339 U.S. at 315. Here, the DHHS’s attempt at
notice barely qualifies as a “mere gesture.” As is unfortunately all too common, the DHHS allowed
its legitimate concern for protecting children to cause it to neglect its concomitant responsibility
to also treat parents with fundamental fairness.
We therefore vacate the trial court’s order to remove KF from respondent’s care following
the preliminary hearing. See In re Sanders, 495 Mich. at 401, 422-423 (vacating the trial court’s
order limiting a father’s contact with his children and requiring him to comply with services where
the father had not been specifically adjudicated as unfit, reasoning that the order should be vacated
because due process required a specific adjudication of a parent’s unfitness before interfering with
the parent-child relationship and an impermissible infringement on a parent’s fundamental right to
direct the care, custody, and control of the parent’s child without providing adequate process is
unconstitutional under the Due Process Clause of the Fourteenth Amendment); Mullane, 339 U.S.
at 307-309, 313, 319-320 (reversing a judgment because the beneficiaries of a common trust fund
had received constitutionally insufficient notice of the proceedings affecting their property
interests).3
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We conclude that respondent preserved her lack-of-notice argument. Respondent called the court
and sought to adjourn the matter to a later date. The referee denied this request and addressed this
decision on the record. “In general, issues that are raised, addressed, and decided by the trial court
are preserved for appeal.” In re TK, 306 Mich. App. 698, 703; 859 NW2d 208 (2014).
Petitioner argues on appeal that respondent waived any defects in notice because her
appointed attorney represented her at the preliminary hearing and did not object to the notice
received by respondent. Petitioner relies on MCR 3.920(H), which provides as follows:
(H) Notice Defects. The appearance and participation of a party at a hearing
is a waiver by that party of defects in service with respect to that hearing unless
objections regarding the specific defect are placed on the record. If a party appears
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Vacated and remanded for further proceedings not inconsistent with this opinion. We do
not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause
/s/ Michael J. Riordan
or participates without an attorney, the court shall advise the party that the
appearance and participation waives notice defects and of the party’s right to seek
an attorney.
However, respondent did not appear and participate in the hearing. Petitioner has not cited
any authority for the proposition that appointing an attorney for an absent parent at a preliminary
hearing constitutes a de facto waiver of defects in notice where the absent parent explicitly claims
that notice was constitutionally deficient in violation of the parent’s right to due process. A trial
court cannot cure constitutionally deficient notice to the parent simply by appointing counsel in
the parent’s absence.
Finally, in light of our determination regarding respondent’s due-process issue,
respondent’s remaining appellate issue is moot and we decline to address it. B P 7 v Bureau of
State Lottery, 231 Mich. App. 356, 359; 586 NW2d 117 (1998).
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