In re Ferranti

• Decision Date: 12 June 2019
• Docket Number: Docket No. 157907
• Citation: 934 N.W.2d 610,504 Mich. 1
• Parties: IN RE FERRANTI, Minor.
• Court: Michigan Supreme Court

504 Mich. 1

934 N.W.2d 610

IN RE FERRANTI, Minor.

Docket No. 157907

Supreme Court of Michigan.

Decided June 12, 2019

Argued October 10, 2018

McCormack, C.J.

This Court’s decision in In re Hatcher , 443 Mich. 426, 505 N.W.2d 834 (1993), generally bars a parent from raising errors from the adjudicative phase of a child protective proceeding in the parent’s appeal from an order terminating his or her parental rights. The Hatcher rule rests on the legal fiction that a child protective proceeding is two separate actions: the adjudication and the disposition. With that procedural (mis)understanding, we held that a posttermination appeal of a defect in the adjudicative phase is prohibited because it is a collateral attack. This foundational assumption was wrong; Hatcher was wrongly decided, and we overrule it.

The Hatcher rule prevented these respondents-parents from challenging the undisputed defects in their pleas—the pleas that supported the trial court’s exercise of dispositional authority and the termination of the respondents' parental rights. We reverse the Court of Appeals, vacate the trial court’s order of adjudication and order terminating the respondents' parental rights, and remand this case to the trial court for further proceedings. And because the trial court violated the respondents' due-process rights by conducting an unrecorded, in camera interview of the subject child before the court’s resolution of the termination petition, a different judge must preside on remand.

I. FACTUAL AND PROCEDURAL HISTORY

The respondents have several children together. Their youngest, a daughter, JF, was born in 2003. JF has spina bifida, a birth defect relating to the gestational development of the spinal cord. As a result of her spina bifida, JF has trouble ambulating without the aid of a mobility device. Also related to spina bifida, JF has neurogenic bladder, and she must use a catheter to urinate. JF has required medical care and supervision for her entire life.

In October 2015, the petitioner, the Department of Health and Human Services (the Department), petitioned to remove JF from the respondents' care. The Department alleged that the respondents had failed to adequately attend to JF’s medical needs by missing several medical appointments and failing to regularly refill her prescription medications. The Department also alleged that the living conditions in the respondents' home posed a health risk to JF. The petition described the respondents' home as having "clutter throughout," making it difficult to maneuver in a wheelchair. The petition also described JF’s bathroom as "filthy" and the home as having "a strong odor of animals and urine."

The court held an emergency hearing on the petition and placed JF in foster care, but the court permitted her to have unsupervised visits at the respondents' home. After several more hearings, the trial court found probable cause to authorize the petition and set an adjudication trial.

At a preadjudication status conference in December 2015, the respondents admitted that JF had been prescribed medications for her health condition, that they had not refilled several of JF’s prescriptions since January 2015, and that some of those prescriptions could have been refilled at no cost. These admissions allowed the trial court to exercise jurisdiction over JF. The respondents made no other admissions.

In taking the respondents' pleas, the court did not advise them that they were waiving any rights. Nor did the court advise them of the consequences of their pleas, as required by our court rules. See MCR 3.971.¹

And although it was not required to do so by our court rules, the court did not advise the respondents that they could appeal its decision to take jurisdiction over JF.

At the initial dispositional hearing held on January 12, 2016, the trial court adopted the family treatment plan proposed by the Department. That plan required the respondents to complete psychological examinations, maintain a clean home, and attend all of JF’s scheduled medical appointments. The court’s initial dispositional order maintained JF’s placement in foster care and continued to allow JF to have unsupervised visits with the respondents at the family home.

As discussed, the Department’s initial assessment of the home (as alleged in the petition) was that it posed a health risk unique to JF because her bladder catheterization was susceptible to infection. But at a preadjudication hearing held shortly after the Department filed its petition, JF’s lawyer-guardian ad litem (LGAL) described the respondents' home as "habitable" and "suitable" for JF.² And although the respondents' treatment plan required them to maintain a clean home, neither the parties nor the court focused on this issue at the first two dispositional review hearings in April and July 2016.³ But at the third and final dispositional hearing in October 2016, the parties disputed the home’s suitability for JF.

The trial court concluded the October hearing by authorizing the Department to file a termination petition, but the court noted that its decision was limited to that procedural step. The court was troubled by the conflicting testimony about the condition of the home and stated that it wanted to see the home for itself. And the court did that in February 2017. While the record shows that the respondents' attorneys and the LGAL were present when the court visited the family home, the court did not document its observations and factual findings. The respondents' attorneys were prohibited from addressing the court during the visit.

The court conducted the termination hearing over three days in May, June, and July 2017. After the June hearing date, the court stated that it was "inclined to speak with [JF]" and invited objections from counsel. When the hearing resumed in July, the court announced that it had conducted an in camera interview with JF. The court made no record of its conversation with JF.

The court terminated the respondents' parental rights, citing two statutory grounds for termination: MCL 712A.19b(3)(c)(i )⁴ and MCL 712A.19(3)(g).⁵ The court determined that both grounds were satisfied by clear and convincing evidence because of the "very unhygienic household circumstance, and a lack of or inability to create hygienic conditions ...." In its analysis of the child’s best interests, the court explained that the home environment "is not as atrociously bad as it was, but even when the Court viewed the situation, it is not where a person with Spinal [sic] Bifida will thrive."

The respondents appealed. They challenged the trial court’s jurisdiction to terminate their parental rights because of the defects in their pleas, and they challenged the trial court’s ability to fairly decide the termination decision (and the respondents' ability to challenge that decision on appeal) as a result of the court’s unrecorded visit to the family home and the in camera interview with JF. The Court of Appeals affirmed the trial court’s termination decision in an unpublished opinion. In re Ferranti , unpublished per curiam opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and 340118), 2018 WL 2165548. The panel concluded that our holding in Hatcher prohibited it from considering the respondents' claim that the trial court violated their due-process rights by failing to advise them of the consequences of their pleas. Ferranti , unpub. op. at 6. The panel also held that any error from the visit to the family home did not violate the respondents' due-process rights, id. at 8, and that the respondents waived the claim that the court’s in camera interview was error, id. at 9.

The respondents sought leave to appeal in this Court. We granted oral argument on the application and directed the parties to address these issues:

(1) whether this Court’s opinion in In re Hatcher , 443 Mich. 426 (1993), correctly held that the collateral attack rule applied to bar the respondent-parents from challenging the court’s initial exercise of jurisdiction over the respondents on appeal from an order terminating parental rights in that same proceeding; (2) if not, (a) by what standard should courts review the respondents' challenge to the initial adjudication, in light of the respondents' failure to appeal the first dispositional order appealable of right, see MCR 3.993(A)(1), and (b) what must a respondent do to preserve for appeal any alleged errors in the adjudication, see e.g., In re Hudson , 483 Mich. 928 (2009) ; (3) if Hatcher was correctly decided, whether due process concerns may override the collateral bar rule, see, In re Sanders , 495 Mich. 394 (2014), and In re Wangler , 498 Mich. 911 (2015) ; (4) whether a trial court is permitted to visit a respondent’s home to observe its condition, and, if so, what parameters should apply to doing so; and (5) whether a trial court may interview a child who is the subject of child protective proceedings in chambers, and, if so, what parameters should apply to doing so. [ In re Ferranti , 502 Mich. 906, 906, 913 N.W.2d 330 (2018).]

II. LEGAL BACKGROUND

We review the interpretation and application of statutes and court rules de novo. In re Sanders , 495 Mich. 394, 404, 852 N.W.2d 524 (2014). Whether child protective proceedings complied with a parent’s right to due process presents a question of constitutional law, which we also review de novo. Id. at 403-404, 852 N.W.2d 524. De novo review means we review this issue independently, with no required deference to the courts below.

A. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN

Child protective proceedings are governed by the juvenile code, MCL 712A.1 et seq. , and Subchapter 3.900 of the Michigan Court Rules. Any person who suspects child abuse or neglect may report their concerns to the Department. MCL 712A.11(1). The Department, after conducting a preliminary investigation, may then petition the Family Division of the circuit court to take jurisdiction over...