Michigan Court of Appeals Develops Parental Rights Termination Law

On October 21st, 2014, the Michigan Court of Appeals addressed the impact of the recent Sanders decision that overturned the well-settled one-parent doctrine.   The previously-constitutional one-parent doctrine held that a trial court may exercise jurisdiction over both parents post-adjudication even though the trial court found only one parent in violation of the law at the adjudication.  Sanders held that the one-parent doctrine violated a non-adjudicated parent's right to procedural due process - notice of a deprivation of rights and a right to be heard on that deprivation.

In In re S. Kanjia, Minor, the Michigan Court of Appeals addressed two questions: 1) "whether the termination must be vacated in light of our Supreme Court’s opinion in In re Sanders . . . ," and 2) "whether respondent’s appointed trial counsel was ineffective where counsel had no contact with respondent for ten months after her appointment and only met with respondent after the trial court had authorized the filing of a supplemental petition to terminate respondent’s parental rights."

The Court first recited the facts of the case:

Following the entry of the termination order, respondent filed an appeal by right. On April 23, 2014, respondent’s appointed appellate counsel moved this Court to allow him to withdraw his representation pursuant to MCR 7.211(C)(5), asserting that he could not identify any appellate issues of legal merit, thereby rendering the appeal wholly frivolous. This Court denied the motion and ordered counsel to address two issues: (1) whether the termination must be vacated in light of our Supreme Court’s opinion in In re Sanders, 495 Mich 394; 852 NW2d 524 (2014), and (2) whether respondent’s appointed trial counsel was ineffective where counsel had no contact with respondent for ten months after her appointment and only met with respondent after the trial court had authorized the filing of a supplemental petition to terminate respondent’s parental rights.

The Court's analysis of respondent-father's arguments concerning the one-parent doctrine followed.

Respondent argues that, in light of Sanders, his adjudication in these child protective
proceedings violated his procedural due process rights . . .

The trial court in this case clearly applied the one-parent doctrine when subjecting respondent to its dispositional authority, and consequently, under Sanders, respondent’s due process rights were violated when his parental rights were terminated. The original petition focused on mother, and contained only two allegations concerning respondent—that he was the putative father of the child and that mother had previously been involved with the DHS because of domestic violence with respondent. Mother entered a no-contest plea to the allegations against her, thereby allowing the trial court to assume jurisdiction over the child. However, petitioner did not pursue any allegations against respondent at the adjudication trial and respondent did not enter a plea. Consequently, he was never adjudicated as unfit by the trial court. In fact, the trial court’s February 13, 2012 order of adjudication did not even name respondent himself as a respondent. Nonetheless, respondent was subjected to the trial court’s dispositional authority; he was ordered to comply with a parent-agency treatment plan and ultimately his parental rights were terminated. Thus, under Sanders, respondent’s due process rights were violated.

Despite the merit of respondent’s claim, whether he is entitled to relief depends on two questions: first, whether he may now raise the issue for the first time on direct appeal from the order of termination, and second, whether Sanders applies retroactively to his case, which was pending on appeal at the time Sanders was decided. We hold that, while the former question must be answered in the affirmative, the latter question must be answered in the negative because, while Sanders has limited retroactive effect, respondent failed to preserve the issue.

The Court next addressed the issue of whether respondent-father's argument on appeal constituted a collateral attack on the the trial court's exercise of jurisdiction over the child, or whether the argument was a direct attack on the trial court's exercise of its dispositional powers over the father himself.

. . . we conclude that a Sanders challenge, raised for the first time on direct appeal from an order of termination, does not constitute a collateral attack on jurisdiction, but rather a direct attack on the trial court’s exercise of its dispositional authority. In Sanders, our Supreme Court distinguished between adjudicated and unadjudicated parents; it held that “due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship.” In re Sanders, 495 Mich at 422. In other words, the Court in Sanders held that due process prevents a trial court from entering dispositional orders—including orders of termination—against an unadjudicated respondent. Based on this reasoning, a respondent who raises a Sanders challenge on direct appeal from a trial court’s order of termination does not collaterally attack the trial court’s exercise of jurisdiction, but rather directly challenges the trial court’s decision to terminate the respondent’s parental rights without first having afforded the respondent sufficient due process, i.e., an adjudication hearing at which the respondent’s fitness as a parent was determined . . .

Accordingly, we find that the general rule prohibiting a respondent from collaterally attacking a trial court adjudication on direct appeal from a termination order does not apply to cases where a respondent raises a Sanders challenge to the adjudication. Therefore, we hold that respondent is entitled to raise his Sanders challenge on direct appeal from the trial court’s order of termination, notwithstanding the fact that he never appealed the initial order of adjudication.

The Court next addressed whether Sanders was fully retroactive or merely retroactive to a limited number of cases.

Because we conclude that respondent is entitled to raise his Sanders challenge on direct appeal from the trial court’s order of termination, we must next decide whether the holding in Sanders applies to his case. Sanders was not decided until June 2, 2014, approximately six months after the trial court terminated respondent’s parental rights. However, respondent’s appeal was pending before this Court at the time Sanders was decided . . .


As a threshold matter, we find that full retroactivity of the rule in Sanders is not justified. In holding that the one-parent doctrine is unconstitutional, the Sanders Court overruled CR, a decision of this Court which had earlier adopted the doctrine based on its interpretation of Subchapter 3.900 of the Michigan Court Rules, because this Court’s interpretation “fail[ed] to recognize the unique constitutional protections that must be afforded to unadjudicated parents[.]” In re Sanders, 495 Mich at 407-408, 414. CR was decided in 2001 and had been relied upon in numerous cases to assert jurisdiction over unadjudicated parents. See, e.g., In re LE, 278 Mich App 1, 17-18; 747 NW2d 883 (2008). It is apparent that because the one-parent doctrine established in CR was clear and uncontradicted until Sanders, full retroactivity is not justified. McNeel, 289 Mich App at 94-95. Because Sanders overruled clear prior caselaw, there is a colorable argument that its holding could be limited to prospective application only. Id.; Jahner, 197 Mich App at 114.

Nonetheless, we hold that Sanders should be given limited retroactivity. At the outset, the Sanders Court itself applied its holding to the respondent in that case, thus indicating that it did not intend for its holding to apply only prospectively. McNeel, 289 Mich App at 95 (“[I]t is clear that this Court has already concluded that [a previous Court of Appeals decision] did not apply prospectively only because it applied its holding to the three cases consolidated in [that opinion] and ruled that the plaintiffs in all three cases were entitled to [relief].”). Further, as noted above, this Court has already applied Sanders retroactively to a case pending on appeal when Sanders was decided. In re K Smith Minor, unpub order. Finally, the application of the factors discussed in Jahner weighs, on the whole, in favor of limited retroactivity to those cases pending on appeal when Sanders was decided. McNeel, 289 Mich App at 95 . . .

We hold that a respondent may raise a Sanders challenge to a trial court’s adjudication in a child protective proceeding on direct appeal from the trial court’s order terminating that respondent’s parental rights. That is, such an appeal does not constitute an impermissible collateral attack on the trial court’s adjudication. We further hold that Sanders is to be given limited retroactivity; its holding applies only to cases then pending when Sanders was decided, where the issue was raised and preserved. Accordingly, because respondent failed to raise and preserve the Sanders issue in the trial court, he is not entitled to relief on his Sanders challenge.

Finally, the Court addressed trial counsel's alleged ineffective assistance.

. . . even though respondent’s trial counsel’s conduct was objectively unreasonable for failing to have contact with him for approximately ten months, the record supports that he was not prejudiced thereby. There was sufficient evidence that respondent was made fully aware of the consequences of failing to engage in services but nevertheless failed to participate. Moreover, he failed to demonstrate sufficient benefit when he finally did engage in services and concerns about his parenting skills persisted at the time of termination. Given the totality of circumstances, there is no reasonable probability that, but for trial counsel’s deficient performance, the result of the termination proceeding would have been different and, accordingly, respondent is not entitled to relief.