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Mom Notified Two Hours Before Hearing: Child Removal Order Vacated

Posted on Wednesday, March 3, 2021

The trial court’s order removing the minor child from the respondent-mother’s care must be vacated because the respondent was denied her fundamental right to procedural due process, the Michigan Court of Appeals has ruled.

The record in In re Fisher, Minor (Docket No. 351947) reflected that the respondent was never served by the Michigan Department of Health and Human Services (DHHS) with written notice of a preliminary hearing or a summons. The record also showed that the respondent had directly contacted the referee and the referee had denied her request to adjourn the hearing to a later date. Despite this, the referee determined the respondent had been provided adequate notice of the preliminary hearing and the removal hearing proceeded in her absence. An order was subsequently entered removing the minor child from the respondent’s care.

The respondent appealed, arguing her procedural due process rights were violated. She claimed that DHHS had denied her due process because the preliminary hearing that resulted in her child being taken into protective custody was held in her absence and without providing her adequate notice.

The Court of Appeals agreed with the respondent, finding that the two hours’ notice that she was given by DHHS was insufficient.

“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 Court of Appeals wrote. “The process given to respondent in this case before removing her child was not ‘fundamentally fair.’”

The DHHS’s attempt at notice barely qualified as a “mere gesture,” the Court of Appeals said. “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.”

Judges Stephen L. Borrello, Amy Ronayne Krause and Michael J. Riordan were on the appellate panel that issued the decision.

Background

The DHHS and Child Protective Services (CPS) became aware of the respondent and her child, KF, when the respondent sought assistance with stopping a pending eviction. During the investigation into the eviction matter, the respondent tested positive for controlled substances.

On November 4, 2019, CPS investigator Benjamin Nichols filed a petition asking the Genesee County Circuit Court to take jurisdiction over KF, remove the child from the respondent’s care and temporarily place the child with the DHHS. A preliminary hearing was scheduled for 2 p.m. on November 13, 2019, and a notice of hearing was issued. According to the proof of service in the court file, notice of the hearing was served only on the prosecuting attorney and the DHHS – it was not served on the respondent.

The preliminary hearing was held on the scheduled date. The hearing did not begin until 4:08 p.m. The respondent was not at the hearing, although an attorney was present who had been appointed to represent her. At the hearing, the referee asked Nichols whether the respondent had received notice. The following exchange took place:

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 continued with the preliminary hearing and entered an order authorizing the petition and removing KF from the respondent’s care. This order also indicated the referee had found that notice of the hearing had been given, as required by law. An order was entered authorizing the DHHS or any peace officer to take KF into protective custody.

Last-Minute Notice

On appeal, the respondent claimed she was denied procedural due process when the preliminary hearing that resulted in KF’s removal was held in her absence without giving her adequate notice.

In its analysis, the Court of Appeals examined MCR 3.965(B)(1) (Preliminary Hearing), which addresses the issue of notice and the attendance of parents at preliminary hearings, and MCR 3.920 (Service of Process), which says the court “shall” ensure that a respondent in a child-protective proceeding is “notified of each hearing” and provides specific instructions regarding notice of hearings. The Court of Appeals also cited MCR 3.921 (Persons Entitled to Notice), which says, among other things, that a summons must be served on a respondent in a child-protective proceeding.

“[T]he record makes clear that respondent was never served prior to the preliminary hearing with written notice of the preliminary hearing or a summons,” the Court of Appeals wrote. “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.”

The Court of Appeals then addressed whether “two hours oral notice of the hearing was fundamentally fair and provided respondent with constitutionally sufficient due process under the circumstances.” In particular, the appeals court pointed out that the hearing had been scheduled nine days earlier and that Nichols had spoken with the respondent by telephone the previous day, but did not tell her about the hearing and, instead, waited “until essentially the last minute to ensure that respondent received some degree of notice.”

Next, the Court of Appeals looked to the U.S. Supreme Court’s decision in Mathews v Eldridge, 424 US 319 (1976), to determine if two hours was sufficient notice. Mathews set forth three factors to ascertain what constitutes sufficient due process: 1) the private interest that will be affected by the action; 2) 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 3) the government’s interest, including the function involved and the fiscal and administrative burdens the additional or substitute procedural requirement would entail.

Regarding the first Mathews factor, the Court of Appeals pointed out that “a parent’s interest in the care, custody, and control of the parent’s child is … one of the fundamental liberty interests protected by the Fourteenth Amendment and an interest that is obviously more important than any mere property interest.”

The Court of Appeals then examined the second Mathews factor, noting the “essence” of due process is the requirement that a person “in jeopardy of serious loss be afforded notice of the case against him and opportunity to meet it.” In this case, the Court of Appeals said it questioned whether the two hours’ notice that was given “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.”

Moreover, although the 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,” the Court of Appeals observed. “In the absence of any discussions, we conclude that representation under such circumstances was, at best, constitutionally insufficient.”

Providing the 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, … 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,” the Court of Appeals explained. “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.”

In conclusion, the Court of Appeals reviewed the third Mathews factor: governmental interest. “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.”

Accordingly, the Court of Appeals vacated the trial court’s order to remove KF from the respondent’s care and remanded the case for further proceedings.

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