In a published opinion, In re Hansen, the Court of Appeals affirmed the termination of respondent’s parental rights despite the fact that the trial court applied a best interest standard that was replaced by legislation effective in July 2008. The COA concluded that application of the out-dated and oft misunderstood “contrary to the best interest” of the minor child standard, although erroneous, yielded the correct result because a statutory ground for termination had been met and the child could not be left in limbo while waiting for her father to be released from prison.
Presumably, this opinion was published, unlike most termination cases, to clarify that the trial courts should apply the statutory standard prescribed by the legislature in July 2008, requiring the trial courts to find that both a statutory ground for termination has been met and that termination is in the best interest of the child. Notably, the statute itself clarifies this legal issue and the case did not construe the statute, nor did it present application of the new statutory language to a unique set of facts. Seemingly, the case does not fit the criteria for publication under MCR 7.215(B).
In reaching the right result, the COA noted that the appellate counsel failed to preserve the best interest issue because the issue, although briefed, was not properly phrased in Appellant’s questions presented. For this proposition, the COA cited a case that has become the nemesis of appellate attorneys across the state, People v Yarbrough (“an issue is not preserved for appeal if it is not raised in appellant’s statement of questions presented”). Although the COA addressed the issue anyway, the very idea that an appellant could lose review of an issue that could impact the care and custody of his minor child for failing to properly phrase a question presented is frightening to say the least.
Even though Yarbrough pronounces that an issue is unpreserved if it is not stated in a question presented, it does so without citing to a court rule, or Michigan Supreme Court case addressing the reasoning for disposing of an issue that has been briefed simply because the question presented is imprudently phrased. As any appellate practitioner knows, the rule providing for a brief’s contents is MCR 7.212(C). Under this rule an appellant is required to provide within an appellant’s brief a statement of questions involved, “stating concisely and without repetition the questions involved in the appeal.” Nowhere in this rule is there a directive that failing to do so will result in a finding that the issue has been unpreserved and will not be reviewed on appeal. The rule includes provisions regarding the requirement of a jurisdictional statement, table of contents, index of authorities, and statement of facts.
However, when any of these other sections are inadvertently omitted or improperly executed, appellant’s counsel is faced with a defect letter providing an opportunity to cure the defect before the appeal is dismissed or an issue is waived. It doesn’t follow then, that failing to properly execute questions presented, also contained within MCR 7.212(C), would not be met with the same defect letter instead of an essentially unreviewable conclusion that the issue, although properly objected to in the trial court an properly briefed, is unpreserved.
Certainly In re Hansen is not the first case, and won’t be the last, citing Yarbrough to hold that an issue is “unpreserved.” The impact of this finding varies greatly from case to case. This issue prompts several questions: (1) How concise can a question presented realistically be if an issue can be rendered unpreserved when it is too concise? (2) If the issue is properly briefed and contains a proper standard of review, isn’t the failure to raise it in the question presented harmless? (3) Does the punishment of rendering an issue “unpreserved” properly address the actual harm or inconvenience actually caused by the improper phrasing of a question presented?
Despite the numerous concerns presented by this situation, one thing is clear: if the question presented problem is going to continue to be applied in a manner that renders issues unpreserved and therefore, unreviewed, appellate practitioners may need some guidance to avoid a preservation pitfall.