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In re Kanjia

Court of Appeals of Michigan

December 30, 2014

In re S. KANJIA

Page 863

Kent Circuit Court. Family Division. LC No. 11-053881-NA.

Before: BORRELLO, P.J., and SERVITTO and SHAPIRO, JJ.

OPINION

Page 864

[308 Mich.App. 662] Douglas B. Shapiro, J.

Respondent father appeals as of right the trial court order terminating his parental rights to the minor child under MCL 712A.19b(3)(c)( ii ) (failure to rectify other conditions causing the child to come within the court's jurisdiction) and (3)(g) (failure to provide proper care and custody). For the reasons set forth in this opinion, we vacate the order of termination and remand for further proceedings.

Following the entry of the termination order, respondent filed an appeal as of right. On April 23, 2014, respondent's appointed appellate counsel filed a motion in this Court to allow him to withdraw his representation pursuant to MCR 7.211(C)(5), asserting that he could not identify any appellate issues of legal merit, thereby rendering the appeal wholly frivolous.[1] This Court denied the motion and ordered counsel to address two issues on appeal: (1) whether the termination order must be vacated in light of our Supreme Court's opinion in In re Sanders, 495 Mich. 394; 852 N.W.2d 524 (2014), and (2) whether respondent's appointed trial counsel [308 Mich.App. 663] was ineffective because counsel had no contact with respondent for 10 months after her appointment and only met with respondent after the trial court had authorized the filing of a supplemental petition to terminate respondent's parental rights.[2]

I. APPLICATION OF SANDERS

Respondent argues that, in light of Sanders, his adjudication in these child

Page 865

protective proceedings violated his procedural due process rights.[3]

A. ADJUDICATION IN CHILD PROTECTIVE PROCEEDINGS AND THE ONE-PARENT DOCTRINE

" In Michigan, child protective proceedings comprise two phases: the adjudicative phase and the dispositional phase." Sanders, 495 Mich. at 404. " Generally, a court determines whether it can take jurisdiction over the child in the first place during the adjudicative phase." Id. Jurisdiction is established pursuant to MCL 712A.2(b). Id. " When the petition contains allegations of abuse or neglect against a parent, MCL 712A.2(b)(1), and those allegations are proved by a plea or [by a preponderance of the evidence] at the [adjudication] trial, the adjudicated parent is unfit." Id. at 405. " While the adjudicative phase is only the first step in child protective proceedings, it is of critical importance because the procedures used in adjudicative hearings protect the parents from the risk of erroneous deprivation of their parental rights." Id. at 405-406 (quotation marks and citation omitted).

[308 Mich.App. 664] Child protective proceedings are initiated by the state's filing a petition in the family division of the circuit court requesting the court to take jurisdiction over a child. Id. at 405. A respondent-parent may admit the allegations in the petition, plead no contest to the allegations, or demand a trial. Id. In any event, to take jurisdiction over a child, the trial court must find that the petitioner has proved by a preponderance of the evidence one or more statutory grounds for the taking of jurisdiction alleged in the petition. Id. If the court takes jurisdiction over the child, the proceedings enter the dispositional phase, wherein the trial court has broad authority to effectuate orders aimed at protecting the welfare of the child, including ordering the ...


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