Child’s Guardians Not Obligated To Pay Part Of Mother’s Appointed Counsel Fees

The trial court wrongly ordered the minor child’s legal guardian to pay some of the respondent-mother’s attorney fees in this proceeding to terminate the respondent’s parental rights and adopt the child, the Michigan Court of Appeals has ruled.

The petitioners in In re K. M. Alexander, Minor (Docket No. 371918) had cared for the minor child, KMA, since birth and were the child’s legal guardians. When the petitioners sought to terminate the respondents’ parental rights and legally adopt KMA, the respondents objected.

The Lapeer County Circuit Court appointed counsel for the respondent-mother and the respondent-father, as well as a lawyer-guardian ad litem (L-GAL) for the child. Although Lapeer County reimbursed a portion of the costs for the appointed attorneys, the petitioners were ordered to pay $1,108.08 to cover a portion of the respondent-mother’s legal fees and some of the L-GAL’s fees.

The petitioners appealed, arguing they were not responsible for paying the fees and their due process rights had been violated.

The Court of Appeals vacated the trial court’s order and remanded the case.

The trial court’s ruling “is contrary to statute and court rules,” the Court of Appeals said. “The trial court abused its discretion and violated petitioners’ due-process rights by requiring that they reimburse the trial court for the court-appointed attorney fees incurred by respondent-mother and the L-GAL.”

Judge Adrienne N. Young wrote the published opinion, joined by Judge Mark T. Boonstra and Judge Colleen A. O’Brien

Background

KMA was born to the respondents in 2013. In February 2015, with the respondents’ permission, the trial court granted a petition appointing the petitioners as KMA’s legal guardians.

In November 2023, the petitioners sought to terminate the respondents’ parental rights under MCL 712A.19b(3)(f)(i) and MCL 712A.19b(3)(f)(ii). The petitioners asserted that 1) the respondents had “neglected to provide support and necessary care” for the child; 2) the child “has a guardian but his parents failed to ‘provide regular and substantial support for two years or more’” and 3) the respondents “failed to contact the child for ‘two years or more[.]’” The trial court subsequently appointed Christine G. Strasser as the L-GAL for the minor child, David N. Richardson as the attorney for the respondent-father and Seth G. Bosch as the attorney for the respondent-mother.

A preliminary hearing was set for January 9, 2024. Thereafter, the following noteworthy events occurred.

• On January 10, 2024, attorney Bosch submitted a statement for his expenses related to representing the respondent-mother in December 2023. The trial court ordered payment of $299 from the Lapeer County disbursing officer.

• On January 31, 2024, attorney Bosch submitted a statement for representing the respondent-mother in January 2024. On February 21, 2024, the trial court signed an order for Lapeer County’s disbursing officer to pay attorney Bosch $50.

• On February 16, 2024, attorney Richardson submitted a statement of services. The trial court ordered Lapeer County’s disbursing officer to pay attorney Richardson $330.

• On March 14, 2024, the parties stipulated to adjourn the preliminary hearing to July 17, 2024. Attorney Bosch submitted a statement of service for representing the respondent-mother from March 13, 2024 until March 28, 2024. On April 23, 2024, the trial court ordered the Lapeer County disbursing officer to pay attorney Bosch $151.

On June 13, 2024, the trial court ordered the petitioners to reimburse the trial court $151 for the respondent-mother’s court-appointed attorney services from March 13, 2024 until March 28, 2024. The petitioners filed an objection to the trial court’s order on June 24, 2024, arguing they were not obligated to reimburse the trial court and doing so violated their due process rights. The petitioners also asserted that statutes and case law require that these expenses be paid by the public or the county in which the proceedings occurred.

Thereafter, on July 2, 2024, attorney Strasser submitted a statement for her L-GAL services and expenses related to representing the minor child from December 7, 2023 until June 25, 2024. The trial court ordered Lapeer County’s disbursing officer to pay attorney Strasser $760.08.

The trial court addressed the petitioners’ objections to the reimbursement order at a July 9, 2024 hearing. The petitioners again asserted they were not obligated to reimburse the trial court for the respondent-mother’s attorney fees. In addition, the petitioners’ attorney noted the respondent-mother had yet to actually request court-appointed counsel.

The trial court denied the petitioners’ objections and refused to set aside its order. According to the trial court, the petitioners were responsible for the court-appointed attorney fees because they initiated the action, and not the Michigan Department of Health and Human Services. The trial court also noted the respondents were “indigent,” to which the petitioners’ attorney asserted the trial court had “sua sponte” appointed an attorney for the respondent-mother before she had requested one or had demonstrated that she “cannot afford an attorney” at a preliminary hearing. The trial court responded that this was “policy” and the “[s]tate isn’t bringing it, so the taxpayers of the [s]tate aren’t responsible for it.”

On July 12, 2024, the trial court entered an order denying the petitioners’ objections to the fees imposed. The trial court also listed the hearing date as July 9, 2024, and the order was labeled an “order after preliminary hearing.” Thereafter, a preliminary hearing scheduled for July 17, 2024 was adjourned “until further notice.”

On July 29, 2024, the trial court entered an order finding the petitioners “to be financially able to reimburse the court for costs incurred” and ordered the petitioners to reimburse the trial court $760.08 “for the cost of service from [December 7, 2023] through [June 25, 2024] by Attorney Strasser, who was appointed to represent the child[.]” The order listed the “[d]ate of hearing” as July 29, 2024.

On September 9, 2024, the trial court found the petitioners “financially able to reimburse the court for costs incurred” and ordered them to pay $197 to the Lapeer County Family Court for attorney Bosch’s representation of the respondent-mother from April 4, 2024 until July 16, 2024. The “[d]ate of hearing” was listed as September 9, 2024.

In total, the petitioners were assessed $1,108.08.

The petitioners appealed.

‘Premature’ Appointment Of Counsel

In its analysis, the Court of Appeals explained that, in termination of parental rights cases, the right to counsel is guaranteed and “’the constitutional right of due process confers on indigent parents the right to appointed counsel at hearings that may involve the termination of their parental rights.’ … Statutes and the court rules also guarantee the right to counsel for respondents in termination proceedings.”

However, the appointment of counsel in the present case was “premature,” the Court of Appeals observed. “A trial court is required to ‘advise the respondent of the right to the assistance of an attorney at the preliminary hearing and any subsequent hearing pursuant to MCR 3.915(B)(1)(a).’ MCR 3.965(B)(6). MCL 712A.17c(5) and MCR 3.915(B)(1)(a) instruct that the respondent must appear before the trial court, be instructed of the right to a court-appointed attorney if the party is able to demonstrate he or she is financially unable to retain an attorney, and then the trial court may appoint counsel.”

In this case, when the trial court entered its initial June 13, 2024 order for reimbursement of attorney fees, “no hearings had occurred in the child protective proceedings,” the Court of Appeals pointed out. “Respondent-mother was never on record requesting an attorney, and the trial court had not determined her ability to pay. Although the trial court might have believed respondent-mother was indigent on the basis of her child support arrearages and inability to care for the child, which resulted in the guardianship, the trial court nevertheless was required to follow the procedure.”

Moreover, the respondent-mother “completed a financial statement indicating she had no income or assets on February 20, 2024,” the Court of Appeals observed. “Although the trial court reasonably could have relied on this to justify its actions, its appointment of counsel occurred before this statement was received. Further, it did not negate the fact no hearing had yet occurred.”

Reimbursement Order Vacated

The Court of Appeals continued by noting that, even if it “ignore[d] the errors in the appointment process” and “assume[d] for the sake of argument” that the respondents were entitled to court-appointed counsel, the petitioners were “not responsible for paying for that counsel.”

Regarding court-appointed attorneys, in general the “expenses incurred … shall be paid upon the court’s order by the county treasurer from the county’s general fund,” the Court of Appeals said, citing MCL 712A.25(1). “However, there is some leeway for the Court to assess costs of representation against parties. MCL 712A.17c(8) states: ‘If an attorney or lawyer-guardian ad litem is appointed for a party under this act, after a determination of ability to pay the court may enter an order assessing attorney costs against the party or the person responsible for that party’s support[.] …’ Likewise, MCR 3.915(E) provides: ‘In a child protective proceeding, when an attorney is appointed for a party under this rule, the court may enter an order assessing costs of the representation against the party or against a person responsible for the support of that party after a determination of ability to pay, which order may be enforced as provided by law.’”

The Court of Appeals also noted that MCR 3.916(D) says, “’In a child protective proceeding, the court may assess the cost of providing a guardian ad litem against the party or a person responsible for the support of the party after a determination of ability to pay, and may enforce the order of reimbursement as provided by law.’ There is nothing in the law requiring or supporting assessing costs against the party petitioning the court. Rather, MCL 712A.17c(8), MCR 3.915(E), and MCR 3.916(D) require the trial court to determine a party’s ability to pay for an attorney, appoint an attorney, and then assess costs against that same party or someone responsible for supporting the party.”

In this case, the petitioners “are not responsible for respondent-mother,” the Court of Appeals said. “While petitioners are guardians to KMA, they are not ‘legally obligated to pay for the ward from the guardian’s own money.’ MCL 700.5215. Respondents are required to pay child support and currently retain their parental rights.’”

Accordingly, the trial court’s order requiring the petitioners to reimburse it for the respondent-mother’s court-appointed attorney fees and the L-GAL’s fees “constituted a legal error and was outside the range of reasonable and principled outcomes,” the Court of Appeals stated. “These errors were compounded when, on July 29, 2024, the trial court found petitioners ‘to be financially able to reimburse the court for costs incurred,’ and ordered petitioners to reimburse the trial court $760.08 for Strasser’s court-appointed attorney fees. This order was entered without a hearing, despite listing the ‘[d]ate of hearing’ as July 29, 2024. On September 9, 2024, the trial court found petitioners ‘financially able to reimburse the court for costs incurred’ and ordered them to pay $197 for respondent-mother’s court-appointed attorney fees. Again, there was no hearing despite the ‘[d]ate of hearing’ being listed as September 9, 2024.”

In total, the petitioners were assessed $1,108.08 “and were told that failure to pay could result in ‘contempt of court proceeding[s]’ under MCL 712A.18(2),” the Court of Appeals observed. “MCR 3.921(B) provides ‘the court shall ensure’ the parties ‘are notified of each hearing[.]’ Yet, the trial court did not even hold the hearings, let alone provide notice. Petitioners’ monetary interest was affected by the trial court’s decision to require them to reimburse the trial court for the court-appointed attorney fees, and the procedures used were insufficient to safeguard this interest.”

As a result, the trial court abused its discretion and violated the petitioners’ due process rights by ordering them to reimburse the trial court for the court-appointed attorney fees incurred by the respondent-mother and the L-GAL, the Court of Appeals concluded. “Vacated and remanded for further proceedings ….”