Due Process Rights in Termination Case Not Violated by Failure to Sua Sponte Appoint Counsel | Speaker Law
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Due Process Rights in Termination Case Not Violated by Failure to Sua Sponte Appoint Counsel

Posted on Wednesday, May 16, 2018

In this case (In re Trumble, No 330627) Respondent Mother appealed the Gladwin Circuit Court order terminating her parental rights to her child arguing that the trial court violated her due process by its failure to sua sponte or on its own appoint an attorney to represent her. The Court of Appeals, affirmed the trial court order, stating that because the respondent knowingly declined the offer of appointed counsel at the preliminary hearing and had never shown she suffered from an obvious cognitive impairment, she failed to show that the trial court denied her due process by declining to sua sponte appoint counsel.

 

 

The facts show that the Respondent:

          1.Waived counsel at the preliminary hearing stating she could read, she wished to      represent herself and admit to the petition and participate in a service plan.

2. Although the trial court told her such admissions could lead to termination, she admitted to the allegations.

3. She received notice of subsequent hearings but didn’t attend.

4. Only visited her child 5 times in 4 months.

5. Failed to comply with the service plans.

6. Failed to appear at the termination hearing although notified by mail and by phone and continued to reside in Indiana.

 

Parents have a fundamental liberty interest in making decisions regarding the care,custody and control of their children that is protected by the due process clause of the Fourteenth Amendment of the United States Constitution. The court’s failure to sua sponte appoint counsel did not, however, deprive Respondent of due process. The court has interpreted MCR 3.915(B)(1) to require “affirmative action on the part of the respondent to trigger the appointment and continuation of appointed counsel in all hearings which may affect the respondent’s parental rights.” In re Hall, 188 Mich App 217, 218; 469 NW2d 56 (1991).

 

In this case, Respondent failed to appear at the termination hearing and moved out of state. By her behavior she affirmatively distanced herself from her own case rather than affirmatively working toward return of her child or asking for appointment of counsel.

Respondent also argued that the trial court should have appointed counsel because both the court and the case worker expressed concern about her understanding of the seriousness of her situation. Unlike the cited opinion In re Hicks/Brown, Minors, (Docket No. 328870, issued April 26, 2016), where the court held that the DHHS and courts must actively assist intellectually, cognitively or developmentally impaired parents, there were no overt signs of cognitive impairment in Respondent as was apparent in Hicks. Respondent was articulate and had no apparent difficulty asking and answering questions.

 

The Court of Appeals held that the trial court didn’t deny her due process rights by declining sua sponte counsel and the decision below was affirmed. 

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