In Re Perry

385 N.W.2d 287, 148 Mich. App. 601
CourtMichigan Court of Appeals
DecidedFebruary 3, 1986
DocketDocket 78528, 78531
StatusPublished
Cited by10 cases

This text of 385 N.W.2d 287 (In Re Perry) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Perry, 385 N.W.2d 287, 148 Mich. App. 601 (Mich. Ct. App. 1986).

Opinions

Danhof, C.J.

In these consolidated cases, respondents appeal as of right from an order of the probate court terminating their parental rights to DeShawn Perry.

DeShawn was born on June 13, 1982, more than three months premature. He remained hospitalized for almost five months thereafter for treatment of respiratory, neurological, and ophthalmological problems. He was not expected to live and was considered a special needs child. Respondent Perry was 14 years old when she gave birth to [607]*607DeShawn. She resided with her mother, Roberta Perry. Respondent Taylor, the putative father, was 15 years old at DeShawn’s birth. Respondent Taylor has not acknowledged paternity of the child.

On September 1, 1982, a hospital social worker referred DeShawn’s case to petitioner, Department of Social Services. On October 19, 1982, petitioner initiated these proceedings by filing a petition seeking temporary custody of DeShawn. The petition alleged that DeShawn came within the provisions of the Probate Code because Roberta Perry refused to permit respondent Perry and DeShawn to reside with her, DeShawn required special medical care, and neither respondent had an adequate residence or plan for the care and support of DeShawn.

The following facts related to the adjudicative and statutory review hearings are gleaned from the parties’ briefs and from the incomplete record which was filed here. On October 27, 1982, an adjudicative hearing was held before a probate court referee. After advising respondents of their right to counsel, the referee concluded that the probate court had jurisdiction and placed DeShawn temporarily in its custody. The referee ordered that DeShawn be placed in foster care upon his discharge from the hospital.

From October 27, 1982, until December 15, 1983, three DSS foster care workers and two administrators of a child care training-counseling-paid employment program attempted without success to assist respondent Perry in preparing herself to regain custody of DeShawn. An initial report reflects a strategy which considered termination of parental rights as an appropriate plan assuming no changes in respondents’ circumstances. (See, Petitioner’s Exhibit 3, Closing and Transfer Report, by Children’s Protective Services worker, [608]*608dated October 29, 1982, p 2: "In my assessment termination of parental rights is an appropriate plan, assuming no changes”.) A subsequent report described the strategy of petitioner as one working with the family in outreach therapy in order "to strengthen the family to make their [sic] own decisions for permanency placement” rather than having a social worker impose those decisions. (Petitioner’s Exhibit 4, Initial Social Summary, submitted by Helen Dansby, Social Work Intern, undated, p 3). Later reports, entitled "Hearing Summaries”, reflected petitioner’s desire to continue working with respondents. However, after a visit with DeShawn on August 19, 1983, respondent Perry did not respond to petitioner’s phone calls, letters and other efforts which sought to continue her visits with DeShawn.

On December 15, 1983, a petition seeking permanent custody and termination of respondents’ parental rights was filed. The petition alleged abandonment and neglect by respondents. The petition was authorized at a hearing held in January, 1984. Respondents were present and the probate court appointed counsel for respondents. At a preliminary hearing held February 7, 1984, respondents’ counsel contested the allegations of the petition. Counsel for respondent Perry made a motion to dismiss based on the following grounds: (1) respondents were entitled to counsel prior to the filing of the petition seeking permanent custody and the termination of respondents’ parental rights, (2) respondents did not knowingly and voluntarily waive their right to counsel at the adjudicative hearing held October 27, 1982, and (3) failure to appoint counsel tainted the review hearings and the termination proceedings. The probate court denied the motion. A final dispositional hearing was held April 25, 1984.

[609]*609On appeal respondents claim the existence of a due process right to court-appointed counsel at an adjudicative or a statutory review hearing, founded upon existing case law and the juvenile court rules.

For the source of their constitutional claim, respondents turn to the broad language contained in part II of Justice Levin’s lead opinion in Reist v Bay Circuit Judge, 396 Mich 326, 339-346; 241 NW2d 55 (1976).1 The doctrine of stare decisis2 renders that broad language without precedential value because a majority of the justices sitting in Reist did not concur in Justice Levin’s discussion of a constitutional right to court-appointed counsel at termination proceedings. Justice Coleman, writing separately, described part II as dicta "concerning an unauthorized issue”. Id., p 357. She stated that it presents "a broad and indistinct vista of 'liberties’ to be protected and financial equalizing to be supplied”. Id., p 358. She noted that Michigan has long provided for appointment of counsel for indigents in every termination hearing and that the plaintiff in that case had counsel. Id., p 357. The issue actually decided by the Reist Court concerned an indigent parent’s right to appellate counsel and to a transcript of proceedings fur[610]*610nished at public expense in an appeal from an order terminating parental rights.3

Respondents also rely upon In the Matter of Cobb, 130 Mich App 598; 344 NW2d 12 (1983), and In the Matter of Kenneth Jackson, Jr, 115 Mich App 40; 320 NW2d 285 (1982) to support their constitutional claim. These two cases rely upon the dicta of Reist v Bay Circuit Judge, supra,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re C.M.
48 A.3d 942 (Supreme Court of New Hampshire, 2012)
In Re Osborne
584 N.W.2d 649 (Michigan Court of Appeals, 1998)
Fogarty v. Department of Transportation
504 N.W.2d 710 (Michigan Court of Appeals, 1993)
Department of Social Services v. Brock
442 Mich. 101 (Michigan Supreme Court, 1993)
In Re Brock
499 N.W.2d 752 (Michigan Supreme Court, 1993)
In Re Nash
419 N.W.2d 1 (Michigan Court of Appeals, 1987)
People v. Myers
409 N.W.2d 788 (Michigan Court of Appeals, 1987)
In re Lockett
408 N.W.2d 144 (Michigan Court of Appeals, 1987)
In Re Keifer
406 N.W.2d 217 (Michigan Court of Appeals, 1987)
In Re Perry
385 N.W.2d 287 (Michigan Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
385 N.W.2d 287, 148 Mich. App. 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-perry-michctapp-1986.