A recent Michigan Court of Appeals ruling in a child-protection case is a reminder of just how important it is for parties, agencies, and the trial courts to be diligent about locating parents, so they are notified of their hearing dates.
In In re Forgette/Antcliff-Forgette Minors (Docket No. 327620), the Court of Appeals held that a respondent-mother was entitled to a new termination of parental rights hearing because she never received the required 14-day notice.
The fact that the respondent’s lawyer received notice of the hearing was irrelevant, the Court of Appeals noted. The failure to notify the mother constituted plain error that affected her substantial rights, the court said, vacating the order that had terminated her parental rights.
After child-protective proceedings were initiated against the respondent in 2007, the maternal grandmother was named guardian of the children. When the grandmother died in early 2015, the children’s maternal uncle began caring for them.
A petition to remove the children and terminate the respondent’s parental rights was filed in March 2015. At a March 10 preliminary hearing, the trial court authorized the termination petition and placed the children with the Department of Health and Human Services (DHHS), pending a guardianship with the uncle.
On March 31, the trial court adjourned a pretrial hearing and set a new hearing date for April 29. A copy of the order was served on the respondent’s lawyer in court on March 31. The order was also served on the respondent by ordinary mail. However, the order was returned to the court as “not deliverable as addressed.”
The respondent did not attend the April 29 pretrial hearing. A May 5 hearing on the termination petition was scheduled and the proceedings were adjourned. The respondent’s attorney was served in court on April 29. However, there was no indication the respondent received notice of the May 5 hearing.
On May 5, the trial court adjourned again and scheduled the termination hearing for May 12. The order was served on the assistant prosecutor, the lawyer-guardian ad litem, and the DHHS caseworker.
The respondent did not attend the May 12 termination hearing, and there was no indication that she had been notified of it. A foster care specialist with DHHS was the only witness, and she testified that she had not tried to contact the respondent because her whereabouts were unknown. The trial court ruled it was in the best interests of the children to terminate the respondent’s parental rights and entered an order accordingly.
Court of Appeals Reversal
On appeal, the respondent asserted she was entitled to a new termination hearing because she was not provided 14 days’ written notice.
The Court of Appeals agreed, citing the notice provisions in MCL 712A.19b(2) and MCR 3.977(C)(1), MCR 3.920(D)(3), and MCR 3.921(B)(3). The court also noted that MCR 3.920(G) and (H) provide two exceptions to the notice requirement:
Subsequent Notices. After a party’s first appearance before the court, subsequent notice of proceedings and pleadings shall be served on that party or, if the party has an attorney, on the attorney for the party as provided in subrule (D), except that a summons must be served for trial or termination hearing as provided in subrule (B).
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.
Looking to the subsequent notice provision in MCR 3.920(G), the Court of Appeals pointed out the respondent was properly notified that the pretrial hearing would be held March 31, and that she acknowledged she was served with a summons to appear.
However, the March 31 hearing was not intended to adjudicate the respondent’s parental rights, the Court of Appeals noted. “As such, the summons to appear on March 31, 2015, did not fulfill the requisite 14-day notice of a termination hearing,” the court said. “Given the lack of initial notice, the rule that personal service of notice of an adjourned termination hearing on a respondent is not required, and that service on the respondent’s attorney is sufficient, was not implicated.”
Other than the March 31 order that was returned as undeliverable, the record was “bereft of any evidence” that the respondent was notified of the hearings on April 29, May 5, or May 12, the Court of Appeals said. “Most significantly, there is no indication that respondent was personally served with a summons 14 days before the termination hearing, as required under MCR 3.920(B)(2)(b), (B)(4), and (B)(5)(a)(i),” the court wrote.
Also, there was no evidence that the trial court or the petitioner attempted to determine the respondent’s address or serve her personally after the March 31 order was returned as undeliverable, the Court of Appeals pointed out. “Although it is apparent that respondent’s attorney received notice of the termination hearing, the notice served on respondent’s attorney was not sufficient to provide notice to respondent under MCR 3.920(G) because respondent was still entitled to receive a summons for a trial or termination hearing as provided under MCR 3.920(B),” the court said.
In addition, the Court of Appeals held that the waiver provision in MCR 3.920(H) was not triggered because the respondent did not attend the termination hearing.
“Accordingly, because the record provides no basis for concluding that respondent was served with a summons or received written notice 14 days before the termination hearing, a plain error occurred,” the Court of Appeals concluded, reversing the trial court and ordering a new hearing.