Orta v. Keeney (In re Orta)

• Decision Date: 27 August 2021
• Docket Number: COA: 346399,SC: 161118-9,346400
• Citation: 962 N.W.2d 844 (Mem)
• Parties: IN RE GUARDIANSHIP OF ORTA, Minors. Maria Orta, Petitioner-Appellee, v. Lisa Keeney, Guardian, Respondent-Appellant.
• Court: Michigan Supreme Court

962 N.W.2d 844 (Mem)

IN RE GUARDIANSHIP OF ORTA, Minors.

Maria Orta, Petitioner-Appellee,

v.Lisa Keeney, Guardian, Respondent-Appellant.

SC: 161118-9

COA: 346399

346400

Supreme Court of Michigan.

August 27, 2021

Order

On April 8, 2021, the Court heard oral argument on the application for leave to appeal the February 4, 2020 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Cavanagh, J. (concurring).

Although I concur with this Court's denial order, I write separately because this case illustrates problems that may arise because this state does not afford parents the right, statutory or otherwise, to the assistance of counsel at guardianship proceedings.

Petitioner-mother was financially struggling while caring for her two young children. Her mother, respondent-grandmother, agreed to care for the children for one month while petitioner worked on improving her situation. Petitioner drove the children to respondent's home in Michigan's Upper Peninsula in June 2015, leaving a signed note purporting to provide respondent with permission to consent to medical treatment for the children.¹ After one month, the parties mutually agreed to extend the children's stay while petitioner obtained an apartment and continued to work toward financial stability. Shortly after Labor Day, unbeknownst to petitioner, respondent filed a temporary guardianship petition, which the trial court granted that same day. Respondent's attorney attempted to serve petitioner with notice of the temporary guardianship, her ability to object, and notice of the hearing for full guardianship, but that notice was apparently never received because it was mailed to an incorrect address. According to petitioner, she did not receive actual notice until the beginning of October. In spite of that, she was able to appear at the guardianship hearing on October 15, 2015, albeit without an attorney. At the hearing, she testified about the temporary nature of the arrangement with respondent and represented that she had recently signed a lease for a two-bedroom apartment and held stable employment. Nonetheless, the trial court granted respondent's guardianship petition under MCL 700.5204(2)(b), which provides that a court may appoint a guardian where "[t]he parent or parents permit the minor to reside with another person and do not provide the other person with legal authority for the minor's care and maintenance, and the minor is not residing with his or her parent or parents when the petition is filed." Petitioner did not appeal.

As the Court of Appeals panel eventually concluded, the trial court clearly erred when it granted respondent's guardianship petition. The word "reside" in MCL 700.5204(2)(b) requires not only a child's physical presence with someone other than the parent, but an accompanying intent element from the parent of choosing that place as the child's permanent residence. In re Orta, Minors , unpublished per curiam opinion of the Court of Appeals, issued February 4, 2020 (Docket Nos. 346399 and 346400), 2020 WL 561682. There was no dispute at the initial guardianship hearing in regard to the fact that both petitioner and respondent agreed on a temporary arrangement for the children that was initially expected to last one month, but was later extended, again temporarily, until petitioner could move into a new apartment. Because a statutory requirement was lacking—petitioner did not intend or permit the children to remain with respondent permanently—the trial court erred by appointing respondent as the children's guardian.

This guardianship should not have been entered in the first place. But petitioner, as a pro se litigant, was seemingly unaware that she had a winning issue on appeal. In fact, there is no indication in the record that petitioner was even informed by the trial court that she could appeal the initial guardianship decision. A little over a year later, petitioner attempted to have the guardianship terminated, again without an attorney. This proved unsuccessful, and again petitioner did not attempt to appeal the trial court's denial order. Petitioner was finally able to retain a lawyer to assist her in filing a petition to terminate the guardianship in July 2018—nearly three years after the trial court erroneously granted respondent's guardianship petition. The trial court denied this second petition to terminate the guardianship, but this time with the continued assistance of counsel petitioner did file an appeal. In February 2020, almost five years after the "temporary" living arrangement began, the Court of Appeals recognized the trial court's original error, vacated the guardianship orders, and returned the children to petitioner.

What transpired in this case is troubling. Fit parents have the fundamental constitutional right "to make decisions concerning the care, custody, and control of their children." In re Sanders , 495 Mich. 394, 409, 852 N.W.2d 524 (2014). This right is an element of liberty protected by due process. Id. In my view, this interest can be infringed whenever a child is removed from a parent's care, regardless of whether the child is removed pursuant to a neglect or abuse proceeding instituted by the state or via placement with a private guardian with the state's approval. As the Massachusetts Supreme Judicial Court has reasoned:

The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected. ...

These interests are no less compelling for a parent whose child is the subject of a guardianship proceeding. The guardian, once appointed, assumes significant rights and responsibilities during the period of guardianship that otherwise would have resided with the parent.... The guardian's rights and responsibilities to ensure the child's welfare effectively displace those of the parent. The guardian, and not the parent, becomes the primary caretaker and decision maker for the child. Even if the guardianship lasts for only a brief period of time, the displacement impacts the parent's liberty interests. [ In re Guardianship of V.V. , 470 Mass. 590, 592, 24 N.E.3d 1022 (2015) (quotation marks and citations omitted).]

And, while the rights of a parent whose child is placed in a guardianship are generally not forever terminated, the failure to adhere to a court-structured guardianship plan can segue into a termination of parental rights, MCL 712A.19b(3)(e), at which point the lack of attorney assistance at the guardianship stage may be impossible to untangle. See, e.g., In re McLaughlin , unpublished per curiam opinion of the Court of Appeals, issued March 21, 2017 (Docket No. 332170), 2017 WL 1100712.

Despite a guardianship's intrusion into a parent's fundamental rights, in this state parents are not entitled to the assistance of counsel while navigating a guardianship proceeding. This is understandable to a degree, as there remain legal uncertainties and a lack of uniformity regarding the foundation of the right to counsel in termination proceedings.² Even with the total loss of a fundamental right at stake, the United States Supreme Court has held that due process does not necessarily require the appointment of counsel in every termination proceeding. Lassiter v Dep't of Social Servs. , 452 U.S. 18, 21, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Nonetheless, the Supreme Court recognized that "[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the assistance of appointed counsel not only in parental termination proceedings, but in dependency and neglect proceedings as well." Id. at 33-34, 101 S.Ct. 2153, citing IJA-ABA Standards for Juvenile Justice, Counsel for Private Parties, Standard 2.3(b) (1980); Uniform Juvenile Court Act, § 26(a), 9A ULA 35 (1979); National Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 39 (1969); United States Department of Health, Education, and Welfare (HEW), Children's Bureau, Legislative Guide for Drafting Family and Juvenile Court Acts, § 25(b) (1969); HEW, Children's Bureau, Legislative Guides for the Termination of Parental Rights and Responsibilities and the Adoption of Children, Part II, § 8 (1961); and National Council on Crime and Delinquency, Standard Juvenile Court Act, § 19 (1959). In that spirit, at least 10 states have provided for a right to counsel in a termination proceeding under their respective state constitutions.³ While this Court has yet to address the issue, our Court of Appeals has held that parents have a constitutional right to counsel at a termination proceeding. See In re Williams , 286 Mich. App. 253, 275, 779 N.W.2d 286 (2009) ; In re Powers, Minors , 244 Mich. App. 111, 121, 624 N.W.2d 472 (2000) ; In re Cobb , 130 Mich. App. 598, 344 N.W.2d 12 (1983). Moreover, a parent's right to the assistance of counsel at a child protective proceeding, including a termination hearing, is codified by both statute and court rule in this state. MCL 712A.17c(4) ; MCR 3.915(B). This Court, therefore, has not addressed whether Michigan's Due Process Clause, Const. 1963, art. 1, § 17, supports a constitutional entitlement to the assistance of counsel at a termination proceeding.⁴ Without a recognized constitutional right to counsel at a termination proceeding, the foundation for a parent's right to counsel in a guardianship proceeding where the deprivation is generally less permanent remains largely unexplored and unresolved.

In sum, unlike a parent in a child protective proceeding or a termination of parental rights case, a Michigan parent in a guardianship proceeding has no right to the assistance of counsel by virtue of a statute or court rule. Nor do they have a recognized constitutional right to such assistance. Of course, not all parents may want or need the assistance of counsel at a guardianship proceeding—many...