In re Osborne

459 Mich. 360
CourtMichigan Supreme Court
DecidedMarch 9, 1999
DocketDocket No. 112824
StatusPublished
Cited by21 cases

This text of 459 Mich. 360 (In re Osborne) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Osborne, 459 Mich. 360 (Mich. 1999).

Opinion

Per Curiam.

The probate court terminated the parental rights of a mother, but the Court of Appeals reversed because the assistant prosecutor who tried the termination case had previously represented the mother in this matter. We vacate the judgment of the Court of Appeals, and remand the case for further proceedings.

i

This case involves the parental rights of Dyphine T. Osborne and Randall R. Osborne. Their child is Dylan R. Osborne, who was bom May 5, 1994.

Earlier proceedings in probate court led the court to take custody of three older children of Ms. Osborne. The fathers of those children are persons other than Mr. Osborne.

Both Ms. Osborne and Mr. Osborne have had occasion to seek help for problems with mental health. Each has also had difficulty with substance abuse. Their relationship was marked by substantial domestic violence, with each inflicting significant injuries on the other.

The current proceedings began in October 1994, when Dylan suffered a spiral fracture of his left humerus. Although the injury appeared to have been caused by a twisting force, Dylan’s parents have acknowledged only that he fell while not properly supervised. r i.

In the months that followed, the probate court conducted at least ten hearings as it attempted to protect Dylan and preserve the family. On three separate occasions, he was removed from his parents’ care.

[362]*362For present purposes, it is not necessary to recount the full procedural history of this matter. However, five different appointed attorneys appeared on behalf of Ms. Osborne, and several assistant prosecutors represented the petitioner (the Muskegon County Department of Social Services).

One of the lawyers who appeared on Ms. Osborne’s behalf was Kevin J. Wistrom. He represented her at an August 1995 hearing on a petition to set aside a previous order that barred Mr. Osborne from having contact with Dylan. Ms. Osborne wanted the order lifted.

At the hearing, Mr. Wistrom asked three questions on cross-examination of a foster-care worker employed by the petitioner. He conducted a short direct examination of Ms. Osborne, allowing her to state her views with little interruption. In a nominal cross-examination of Mr. Osborne (he and Ms. Osborne were allied at this stage of the proceedings), Mr. Wistrom asked five additional questions.

After two further hearings (at which Ms. Osborne was represented by two other attorneys), the probate court conducted a hearing on a March 1996 petition for permanent custody. That hearing took place in July and October 1996. By then, Mr. Wistrom had been hired by the Muskegon County Prosecuting Attorney, and he represented the petitioner in the proceedings of July and October. Counsel for Ms. Osborne did not object to Mr. Wistrom’s participation.

By that point, it appeared that Mr. Osborne had made significant progress in addressing his substance-abuse problems, and his shortcomings as a parent. It was therefore agreed that the hearing would [363]*363concern only whether to terminate the parental rights of Ms. Osborne.

At the conclusion of the hearing, the probate court issued an opinion in which it found clear and convincing evidence to terminate the parental rights of Ms. Osborne. The determination was made under MCL 712A. 19b(3)(c)(i), (g); MSA 27.3178(598.19b)(3)(c)(i), (g).1 Such an order entered in November 1996.

In January 1997, Ms. Osborne applied to the Court of Appeals for leave to appeal. The only issue raised in her application was whether there was clear and convincing evidence to support the termination of her parental rights.2

While the application was pending, Mr. Osborne contacted the petitioner, saying that he had resumed drinking and that he was not able to raise Dylan alone. He indicated that he wished to accept termination of his parental rights. Such an order was entered in February 1997 by agreement of the parties.

In April 1997, the Court of Appeals granted Ms. Osborne’s application for leave to appeal.

[364]*364In her May 1997 brief on appeal, Ms. Osborne raised for the first time a claim that Mr. Wistrom’s participation at the termination hearing had been improper. She argued that he might have used, to her prejudice, confidential information that he gained while representing her in August 1995. She argued that his participation cast doubt on the integrity of the proceedings.

The attorney representing Dylan contended that the judgment of the probate court should be affirmed. He noted the lack of objection and proposed that the failure to object had prevented the court from inquiring into the prior representation or the effect that it would have in the termination proceedings.

In a brief filed by another assistant prosecutor, the petitioner presented a short argument that emphasized the failure to notice or raise the apparent conflict of interest. The prosecutor concluded that the Court of Appeals did not have enough facts to rule on the issue, and said that, at most, Ms. Osborne would be entitled to an evidentiary hearing on the issue.

The Court of Appeals reversed the termination on the ground that Mr. Wistrom’s participation in the hearing was improper. 230 Mich App 712; 584 NW2d 649 (1998). The Court remanded for a new hearing on the petition for permanent custody. The Court also disqualified the entire office of the Muskegon County Prosecuting Attorney and directed the probate court to appoint a special prosecutor.

The prosecuting attorney has applied to this Court for leave to appeal.

[365]*365n

The prosecuting attorney’s application for leave to appeal was accompanied by an offer of proof from Mr. Wistrom. In his offer of proof, Mr. Wistrom explained that he had been engaged in private practice in the Muskegon area for a number of years before becoming an assistant prosecutor in December 1995. In private practice, he accepted court appointments to represent persons in probate court. He continued:

2. The Muskegon Count [sic] Juvenile Court during this time contracted with six attorneys at any one time to handle child delinquency and neglect matters.
3. It was common for the six attorneys so employed to substitute or “cover” at hearings for one another, even on cases with which they would normally have no involvement.
4. Normally, I would not meet with a client for whom I was “covering” on behalf of another attorney before the hearing in question.
5. My court-appointed caseload would typically involve 50-60 cases at any one time and approximately 200-250 such cases each year. Additionally, I also served throughout that period of time (1990-1995) as a full-time public defender in the Muskegon County Circuit Court, so that my total court-appointed caseload was in excess of 500 cases per year.
6. When I would “cover” a hearing for another of the contract attorneys, I would return the file to them upon completion of the hearing and would not retain any particular record of that involvement other than a calendar entry.

Mr. Wistrom went on to state that he never met with Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
459 Mich. 360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-osborne-mich-1999.