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04/01/76 REIST v. BAY CIRCUIT JUDGE

April 1, 1976

REIST
v.
BAY CIRCUIT JUDGE



Levin, J. Kavanagh, C. J., and Williams, J., concurred with Levin, J. Ryan, J., took no part in the decision of this case. Coleman, J. Fitzgerald, J., concurred with Coleman, J. Lindemer, J.

SYLLABUS BY THE COURT

Separate Opinion

Kavanagh, C. J., and Williams and Levin, JJ.

1. Constitutional Law -- Right to Counsel -- Due Process -- Equal Protection.

There is little difference between the due process and equal protection analyses in right-to-counsel cases: whether the issue is "fairness" under the Due Process Clause or "disparity in treatment" under the Equal Protection Clause, the analysis is in terms of the need for and importance of counsel in making meaningful the rights to trial and access to the appellate process (US Const, Am XIV).

2. Constitutional Law -- Right to Counsel -- Public Assistance.

Indigent persons cannot expect public assistance to prosecute and defend civil suits whenever a liberty or property interest is at stake, but they have a right to such assistance when the interest at stake is of basic importance in our society, involving a fundamental human relationship.

3. Infants -- Constitutional Law -- Right to Counsel -- Public Assistance -- Termination of Parental Rights.

Because of the nature of parental rights termination proceedings and of the basic, fundamental nature of the parental relationship in our society, the Due Process Clause requires assignment of counsel at public expense for an indigent for hearings when the state seeks to terminate his parental rights (US Const, Am XIV; Const 1963, art 1, § 17).

4. Infants -- Constitutional Law -- Right to Counsel -- Public Assistance -- Termination of Parental Rights -- Appeal.

Indigent parents, in proceedings to terminate their parental rights, are entitled to meaningful and adequate access to the appellate process, and this right can only be achieved through representation by counsel and providing counsel with necessary transcripts; the Equal Protection Clause requires that indigent parents be provided counsel for prosecuting the first appeal as of right to the circuit court and such transcripts as counsel requires.

5. Infants -- Termination of Parental Rights -- Right to Counsel -- Advice of Rights.

A parent whose parental rights have been terminated is entitled to be advised on the record that he has a right to appeal the order of termination to the circuit court and that if he is indigent the court will appoint counsel at public expense to represent him and will supply transcripts of the proceedings; in the absence of such advice there could be no assurance either that he knew he had such a right or that he had waived it.

6. Infants -- Termination of Parental Rights -- Right to Counsel -- Public Assistance -- Expense.

The question whether the state or the county shall bear the expense of providing constitutionally required services to indigent persons is primarily for the Legislature to resolve, but until it acts specifically, the financial burden of providing such assistance to indigent parents in proceedings to terminate parental rights is allocated to the county as the unit of government which funds the tribunal in which the indigent parent is called upon to defend his right to the continued custody of his child (MCL 712A.25; MSA 27.3178[598.25]).

Separate Opinion

Coleman and Fitzgerald, JJ.

7. Infants -- Termination of Parental Rights -- Right to Counsel -- Court Rules.

Indigent parents whose parental rights have been terminated, if they appeal to circuit court, should be provided appellate counsel and a transcript at county expense on the basis of statute and court rule (MCL 7124.22; MSA 27.3178[598.22], JCR 1969, 6.3[2]).

8. Infants -- Termination of Parental Rights -- Inconsistent Interests -- Right to Counsel.

Termination of parental rights determines as a matter of fact and of law that the interests of the parent and the child are inconsistent; the child has a status as an individual citizen with rights separate and distinct from a parent found to be neglectful or abusive and appointment of appellate counsel for the parent may not be presumed to protect the rights of the child.

9. Constitutional Law -- Due Process -- Right to Appeal.

Due process has not been held by the United States Supreme Court to require a right of appeal in any civil case, much less the right to appointed counsel and free transcript on appeal.

Separate Opinion

Lindemer, J.

10. Infants -- Termination of Parental Rights -- Appeal and Error -- Right to Counsel.

There is no constitutionally protected right to appellate counsel for indigent parents whose parental rights have been terminated; the Equal Protection Clause does not require absolute equality and once parental rights have been terminated, the constitutional rights of the parents do not remain in the same posture as before the termination.

The opinion of the court was delivered by: Levin; Coleman; Lindemer

The parental rights of Carol Reist were terminated as to one child, and another was made a temporary ward of the juvenile court. Her requests for appointment of counsel and provision of a transcript at public expense for her appeal of right to the circuit court were denied by the Bay County Probate Court, Clare F. Carter, J., and the Bay Circuit Court, Leon R. Dardas, J., on the ground that they had no authority to grant such requests. Plaintiff Reist commenced an action in the Court of Appeals against the circuit and probate Judges for superintending control to compel appointment of counsel and provision of a transcript at public expense (Docket No. 23763). The Supreme Court granted leave to appeal prior to decision by the Court of Appeals. Held:

Remanded to probate court for appointment of counsel and furnishing of transcript.

Justice Levin, Chief Justice Kavanagh and Justice Williams Concurring, would hold that:

1. Because of the nature of parental rights termination proceedings and of the basic, fundamental nature of the parental relationship in our society, the Due Process Clause requires assignment of counsel at public expense for an indigent for hearings when the state seeks to terminate his parental rights. The court rule (JCR 1969, 6.3[2]) requiring the appointment of counsel for indigents at such hearings is constitutionally based.

2. The Equal Protection Clause requires that indigent parents be provided counsel for prosecuting the first appeal as of right to the circuit court and such transcripts as counsel requires.

3. Upon entry of an order terminating parental rights the court shall of record advise parents whose rights are terminated that they have a right to appeal the order of termination to the circuit court and that if they are indigent the court will appoint counsel at public expense to represent them and will supply transcripts of the proceedings. A request for counsel may be made informally and shall be deemed timely if made orally or in writing not later than 20 days after the entry of the order of termination. A timely request for counsel shall toll the time for taking an appeal until entry of an order appointing or denying counsel and for two weeks thereafter. An order appointing counsel shall, whether or not the indigent parent makes a separate request for transcripts, direct that the court stenographer supply counsel with such transcripts of the probate court neglect and termination proceedings as counsel may require. If the court enters an order denying counsel, it shall notify the parent of his right to appeal that decision.

4. Until the Legislature provides otherwise, the cost of assistance is allocated to the county.

Justice Coleman, with whom Justice Fitzgerald concurred, agreed that indigents whose parental rights have been terminated should be provided an attorney and a transcript at county expense if they appeal to circuit court, but would base the Conclusion on statute and court rule, not on constitutional analysis. She would hold that:

1. The Juvenile Court Rule providing for appointment of counsel to represent indigent parents at hearings which may involve termination of parental rights is Judge-made, and its scope may properly be provided judicially by interpreting "hearings" to include appeals to circuit court.

2. Because the statute governing appeals in such cases requires that the appeal be on a transcript or settled record, a transcript must be provided, if the parent cannot afford one, so that the statute can be satisfied.

3. There is no statutory authority for a state agency to pay the fees, and the Legislature has not provided for state assumption of such costs, so payment must be made by the unit of government which funds the tribunal, by order of the probate court.

Justice Coleman believes that a broadly sweeping constitutional decision, using a criminal-law focus on loss of personal liberty to analyze proceedings designed to protect the child, is unnecessary when the issue may be resolved by court rule and statute.

Justice Lindemer, in a separate opinion, concludes that the plaintiff has no constitutionally protected right to appellate counsel in this matter, and states that the precedents cited for the constitutional right are either from criminal cases, and therefore dicta, or did not involve the right to counsel on appeal. The constitutional decision will open the doors in ways presently unexpected.

Justice Ryan did not participate.

Remanded to probate court for appointment of counsel and furnishing of transcripts.

Levin, J.

On a finding of neglect, *fn1 the probate court terminated Carol Reist's parental rights to her 2-1/2 year old son, Richard. Her one-year old son, Robert, was made a temporary ward of the court and termination proceedings were set to begin in six months absent a showing of fitness by Reist.

Reist, who is indigent, was appointed counsel pursuant to a court rule *fn2 for the probate court proceedings. She requested appointment of counsel for her appeal as of right to circuit court *fn3 and asked that a transcript of the probate court proceedings be provided at public expense. Both the probate and circuit Judges denied her requests ...


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