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In re Ferranti

Supreme Court of Michigan

June 12, 2019

In re FERRANTI, Minor.

          Argued on application for leave to appeal October 10, 2018.

          Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

         BEFORE THE ENTIRE BENCH (except Cavanagh, J.)

         Syllabus

         The Department of Health and Human Services (the Department) petitioned the Otsego Circuit Court, Family Division, to remove JF, a minor, from the care of respondents, her parents. JF had spina bifida, a birth defect that affects the development of the spinal cord and that caused JF to require medical care and supervision for her entire life. In particular, JF had trouble ambulating without the aid of a mobility device and had to use a catheter to urinate. In 2015, the Department petitioned the court for JF's removal, alleging that respondents had failed to adequately attend to JF's medical needs by missing several medical appointments and by failing to regularly refill her prescription medications. The Department also alleged that the living conditions in respondents' home posed a health risk to JF because it was cluttered, dirty, and had a strong odor of animals and urine. The court held an emergency hearing and placed JF in foster care, but the court permitted her to have unsupervised visits at respondents' home. After several more hearings, the trial court found probable cause to authorize the petition and set an adjudication trial. At a preadjudication status conference, respondents admitted that they had not refilled several of JF's prescriptions, and the court exercised jurisdiction over JF. In taking respondents' pleas, the court did not advise them that they were waiving any rights nor did the court advise them of the consequences of their pleas, as required by MCR 3.971. In January 2016, the court adopted the Department's proposed family treatment plan, which, among other things, required that respondents maintain a clean home. The court concluded the final dispositional hearing in October 2016 by authorizing the Department to file a termination petition, but the court noted that its decision was limited to that procedural step. The parties disputed the home's suitability for JF, and the court stated that it wanted to see the home for itself. The court visited the home in February 2017 but did not document its observations and factual findings. Additionally, during the termination hearing, the court conducted an in camera interview with JF but made no record of the conversation. The court, Michael K. Cooper, J., ultimately terminated respondents' parental rights. Respondents appealed. The Court of Appeals, Shapiro, P.J., and M. J. Kelly and O'Brien, JJ., affirmed the trial court's termination decision in an unpublished per curiam opinion issued on May 10, 2018 (Docket Nos. 340117 and 340118), concluding that In re Hatcher, 443 Mich. 426 (1993), prohibited it from considering respondents' claim that the trial court violated their due-process rights by failing to advise them of the consequences of their pleas. The panel also held that any error from the court's visit to the family home did not violate respondents' due-process rights and that respondents waived the claim that the court's in camera interview was erroneous. Respondents applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other action. 502 Mich. 906 (2018).

          In an opinion by Chief Justice McCormack, joined by Justices Viviano, Bernstein, and Clement, the Supreme Court, in lieu of granting leave to appeal, held:

         In re Hatcher, 443 Mich. 426 (1993), which generally barred a parent from raising errors from the adjudicative phase of a child protective proceeding in the parent's appeal from an order terminating his or her parental rights, was overruled. An appeal of an adjudication error in an appeal from an order terminating parental rights is not a collateral attack because although a child protective proceeding has two distinct phases-the adjudication and the disposition-the proceeding itself is one action, not two separate actions. Therefore, the collateral-bar rule does not apply within one child protective case. Also, the use of unrecorded, in camera interviews of children in termination-of-parental-rights proceedings violates parents' due-process rights.

         1. Under MCR 3.961(A), a proceeding to terminate parental rights begins when the Department petitions the family division of a circuit court to take jurisdiction over a child. The trial court then holds a preliminary hearing to determine whether the court may exercise jurisdiction over the child. If the court authorizes the petition, the adjudicative phase begins, in which the court determines whether it may exercise jurisdiction over the child and the respondents-parents under MCL 712A.2(b) so that it can enter dispositional orders. Once the court's jurisdiction is established, the case moves to the dispositional phase, in which the court holds review hearings to determine whether the petition should be dismissed or whether the parents' parental rights should be terminated. Hatcher, 443 Mich. 426, generally barred a parent from raising errors from the adjudicative phase of a child protective proceeding in the parent's appeal from an order terminating his or her parental rights. Hatcher made a foundational mistake by erroneously applying the rule from Jackson City Bank & Trust Co v Fredrick, 271 Mich. 538 (1935)-that a court's exercise of jurisdiction cannot be collaterally attacked in a second proceeding-to what is a single, continual proceeding. The "collateral bar" rule generally prohibits a litigant from indirectly attacking a prior judgment in a later, separate action, unless the court that issued the prior judgment lacked jurisdiction over the person or subject matter in the first instance. Hatcher applied that rule to conclude that a respondent who appeals a defect in the adjudicative phase at the end of the child protective proceeding (in an appeal from an order terminating parental rights) is "collaterally" attacking that very same child protective proceeding. But that holding failed to recognize that a child protective proceeding is a single, continual proceeding that begins with a petition, proceeds to an adjudication, and-unless the family has been reunified-ends with a determination of whether a respondent's parental rights will be terminated. Therefore, Hatcher was wrongly decided.

         2. That a case was wrongly decided, by itself, does not necessarily mean that overruling it is appropriate. Courts should review whether the decision defies practical workability, whether reliance interests would work an undue hardship were the decision to be overruled, and whether changes in the law or facts no longer justify the decision. In this case, the Supreme Court's growing list of exceptions to Hatcher showed that its rule defied simple application, especially when a respondent's due-process rights were violated in the adjudication. Hatcher disrupted the careful balancing of interests in the juvenile code by preventing judicial review of meritorious claims of defects in the adjudication; a parent's only remedy under Hatcher was by way of an interlocutory appeal, which disincentivized a parent from timely cooperating with the Department and further delayed a final determination. With regard to reliance interests, Hatcher had scant application; it merely imposed procedural limitations on a respondent's ability to challenge errors in the adjudication. Therefore, overruling Hatcher simply causes readjustments in litigation as opposed to practical, real-world dislocations. Finally, when considering whether changes in the law or facts no longer justify the decision, the erosion of Hatcher's rule through the many exceptions to it created uncertainty and thus justified overruling it. Accordingly, Hatcher was overruled.

         3. Parents have a fundamental right to direct the care, custody, and control of their children. Under the Due Process Clause of the Fourteenth Amendment, for a plea to constitute an effective waiver of a fundamental right, the plea must be voluntary and knowing. MCR 3.971(B)(3) and (4) require the trial court to advise a respondent on the record or in a writing that is made a part of the file of the allegations in the petition, the right to an attorney, the rights the respondent will be waiving by entering a plea, the consequences of that plea (including the possibility that the plea will be used as evidence in a proceeding to terminate parental rights), and to provide advice about the respondent's posttermination support obligations. Respondents argued that adjudication errors raised after the trial court has terminated parental rights should be reviewed for plain error. Under that standard, respondents must establish that (1) error occurred; (2) the error was "plain," i.e., clear or obvious; and (3) the plain error affected their substantial rights. Additionally, the error must have seriously affected the fairness, integrity, or public reputation of judicial proceedings. The Department agreed that plain-error review applied to respondents' claim of adjudication error, and the Department acknowledged that the first and second prongs were satisfied in this case because the court erred by failing to advise respondents of the consequences of their pleas and the rights they were giving up; those errors were plain. The third prong was satisfied because the constitutional deprivations of respondents' fundamental right to direct the care, custody, and control of JF affected the very framework within which respondents' case proceeded; therefore, the error affected respondents' substantial rights. Finally, the error seriously affected the fairness, integrity, or public reputation of judicial proceedings because the trial court did not advise respondents that they were waiving any of the rights identified in MCR 3.971(B)(3) and failed to advise the respondents of the consequences of entering their pleas as required by MCR 3.971(B)(4). The trial court's order of adjudication therefore had to be vacated.

         4. The propriety of a trial court conducting an in camera interview of the subject child in the context of child protective proceedings was an issue of first impression in Michigan. In this case, respondents' agreement to the general idea of the court speaking to JF did not waive their right to have that interview comport with due process. Respondents endorsed only the court's initial proposal that the court wished to speak with JF, but the court never sought-and respondents never gave-their agreement about how that conversation would take place. There was nothing in the juvenile code, caselaw, court rules, or otherwise that permitted a trial court presiding over a termination proceeding to conduct in camera interviews of children for purposes of determining their best interests. Therefore, the Court of Appeals correctly held that the use of unrecorded, in camera interviews in termination proceedings violates parents' due-process rights. On remand, a different judge must preside.

         Trial court order terminating respondents' parental rights vacated; trial court order of adjudication vacated; case remanded to the trial court for further proceedings with a different judge presiding on remand.

          Justice Markman, joined by Justice Zahra, dissenting, would not have overruled Hatcher because it was correctly decided and no sound reason to alter its common-law rule was presented. Justice Markman would have affirmed the judgment of the Court of Appeals because the Court of Appeals correctly held that respondents cannot collaterally attack the instant adjudication after their parental rights have been terminated, that respondents waived the issue pertaining to the interview of the child, and that any error on the trial court's part in visiting respondents' home was harmless. In this case, although the trial court breached MCR 3.971 by failing to advise respondents of their rights, respondents failed to timely raise this issue. Respondents did not appeal the adjudication until after the trial court had terminated their parental rights, nearly two years after the adjudication. An adjudication cannot be collaterally attacked following an order terminating parental rights unless the termination occurred at the initial disposition; however, in this case, the adjudication and the termination were separated by a lengthy period of attempts at reunification and, therefore, respondents were barred from collaterally attacking the adjudication. The majority was incorrect in failing to recognize that although there is only one final order in a child protective case, there are at least two orders that are appealable by right, i.e., the initial dispositional order and the order terminating parental rights. The time to directly attack the adjudication is following the order of disposition placing a minor under supervision of the court. Black's Law Dictionary (6th ed) defines "collateral attack" as "[a]n attack on a judgment in any manner other than by action or proceeding, whose very purpose is to impeach or overturn the judgment; or, stated affirmatively, a collateral attack on a judgment is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment." An order terminating parental rights has an independent purpose other than overturning the adjudication-to attack the termination. Therefore, attacking the adjudication in the appeal of the termination order constitutes a collateral-rather than a direct-attack. The collateral-attack rule is a common-law rule, and when it comes to alteration of the common law, the traditional rule must prevail absent compelling reasons for change. The majority failed to set forth a reason, let alone a compelling reason, to justify its alteration of Hatcher's common-law rule. Contrary to the majority's assertion, numerous "exceptions" to the Hatcher rule have not been carved out.

         Furthermore, the court rules were recently amended to essentially incorporate Hatcher; specifically, the court rules now require the trial court to advise parents that they have an appeal of right from the initial dispositional order and that if they do not challenge the adjudication at that point, they will not be able to challenge it after their parental rights have been terminated, with two exceptions. Given that this Court just incorporated Hatcher into its court rules, Justice Markman was not sure why the majority felt compelled to overrule it in its opinion. In addition, Justice Markman would not overrule Hatcher because finality is critical with regard to child protective proceedings. Allowing a "do-over" is not fair to the children who will be required to endure this process again-or to prospective adoptive parents-and it further results in wasted time, money, and resources as well as disrupts whatever progress and rehabilitation the children might have made during that time. Just as the new court rules reasonably balance the rights of parents and children, and afford a clear opportunity for a fresh start for the abused or neglected child, so too did the prior court rules. It is not right that JF alone should be made subject to a third court rule regime, which does not reasonably balance the interests of parent and child and requires a lengthy re-do of an already lengthy and fair legal process only because of the failure of respondents-already deemed by a court of law to have acted neglectfully-to have abided by the law in pursuing a timely appeal. Thus, in a realm of the law in which reasonable expedition of decision-making has always been thought by the judiciary to be paramount, the majority imposes in this single case a process that is reflective of our legal system at its most unnecessarily drawn out and dilatory.

          Justice Cavanagh did not participate in the disposition of this case because the Court considered it before she assumed office.

          OPINION

          MCCORMACK, C.J.

         This Court's decision in In re Hatcher, 443 Mich. 426; 505 N.W.2d 834 (1993), generally bars a parent from raising errors from the adjudicative phase of a child protective proceeding in the parent's appeal from an order terminating his or her parental rights. The Hatcher rule rests on the legal fiction that a child protective proceeding is two separate actions: the adjudication and the disposition. With that procedural (mis)understanding, we held that a posttermination appeal of a defect in the adjudicative phase is prohibited because it is a collateral attack. This foundational assumption was wrong; Hatcher was wrongly decided, and we overrule it.

         The Hatcher rule prevented these respondents-parents from challenging the undisputed defects in their pleas-the pleas that supported the trial court's exercise of dispositional authority and the termination of the respondents' parental rights. We reverse the Court of Appeals, vacate the trial court's order of adjudication and order terminating the respondents' parental rights, and remand this case to the trial court for further proceedings. And because the trial court violated the respondents' due-process rights by conducting an unrecorded, in camera interview of the subject child before the court's resolution of the termination petition, a different judge must preside on remand.

         I. FACTUAL AND PROCEDURAL HISTORY

         The respondents have several children together. Their youngest, a daughter, JF, was born in 2003. JF has spina bifida, a birth defect relating to the gestational development of the spinal cord. As a result of her spina bifida, JF has trouble ambulating without the aid of a mobility device. Also related to spina bifida, JF has neurogenic bladder, and she must use a catheter to urinate. JF has required medical care and supervision for her entire life.

         In October 2015, the petitioner, the Department of Health and Human Services (the Department), petitioned to remove JF from the respondents' care. The Department alleged that the respondents had failed to adequately attend to JF's medical needs by missing several medical appointments and failing to regularly refill her prescription medications. The Department also alleged that the living conditions in the respondents' home posed a health risk to JF. The petition described the respondents' home as having "clutter throughout," making it difficult to maneuver in a wheelchair. The petition also described JF's bathroom as "filthy" and the home as having "a strong odor of animals and urine."

         The court held an emergency hearing on the petition and placed JF in foster care, but the court permitted her to have unsupervised visits at the respondents' home. After several more hearings, the trial court found probable cause to authorize the petition and set an adjudication trial.

         At a preadjudication status conference in December 2015, the respondents admitted that JF had been prescribed medications for her health condition, that they had not refilled several of JF's prescriptions since January 2015, and that some of those prescriptions could have been refilled at no cost. These admissions allowed the trial court to exercise jurisdiction over JF. The respondents made no other admissions.

         In taking the respondents' pleas, the court did not advise them that they were waiving any rights. Nor did the court advise them of the consequences of their pleas, as required by our court rules. See MCR 3.971.[1] And although it was not required to do so by our court rules, the court did not advise the respondents that they could appeal its decision to take jurisdiction over JF.

         At the initial dispositional hearing held on January 12, 2016, the trial court adopted the family treatment plan proposed by the Department. That plan required the respondents to complete psychological examinations, maintain a clean home, and attend all of JF's scheduled medical appointments. The court's initial dispositional order maintained JF's placement in foster care and continued to allow JF to have unsupervised visits with the respondents at the family home.

         As discussed, the Department's initial assessment of the home (as alleged in the petition) was that it posed a health risk unique to JF because her bladder catheterization was susceptible to infection. But at a preadjudication hearing held shortly after the Department filed its petition, JF's lawyer-guardian ad litem (LGAL) described the respondents' home as "habitable" and "suitable" for JF.[2] And although the respondents' treatment plan required them to maintain a clean home, neither the parties nor the court focused on this issue at the first two dispositional review hearings in April and July 2016.[3]But at the third and final dispositional hearing in October 2016, the parties disputed the home's suitability for JF.

         The trial court concluded the October hearing by authorizing the Department to file a termination petition, but the court noted that its decision was limited to that procedural step. The court was troubled by the conflicting testimony about the condition of the home and stated that it wanted to see the home for itself. And the court did that in February 2017. While the record shows that the respondents' attorneys and the LGAL were present when the court visited the family home, the court did not document its observations and factual findings. The respondents' attorneys were prohibited from addressing the court during the visit.

         The court conducted the termination hearing over three days in May, June, and July 2017. After the June hearing date, the court stated that it was "inclined to speak with [JF]" and invited objections from counsel. When the hearing resumed in July, the court announced that it had conducted an in camera interview with JF. The court made no record of its conversation with JF.

         The court terminated the respondents' parental rights, citing two statutory grounds for termination: MCL 712A.19');">712A.19b(3)(c)(i)[4] and MCL 712A.19');">712A.19(3)(g).[5] The court determined that both grounds were satisfied by clear and convincing evidence because of the "very unhygienic household circumstance, and a lack of or inability to create hygienic conditions . . . ." In its analysis of the child's best interests, the court explained that the home environment "is not as atrociously bad as it was, but even when the Court viewed the situation, it is not where a person with Spinal [sic] Bifida will thrive."

         The respondents appealed. They challenged the trial court's jurisdiction to terminate their parental rights because of the defects in their pleas, and they challenged the trial court's ability to fairly decide the termination decision (and the respondents' ability to challenge that decision on appeal) as a result of the court's unrecorded visit to the family home and the in camera interview with JF. The Court of Appeals affirmed the trial court's termination decision in an unpublished opinion. In re Ferranti, unpublished per curiam opinion of the Court of Appeals, issued May 10, 2018 (Docket Nos. 340117 and 340118). The panel concluded that our holding in Hatcher prohibited it from considering the respondents' claim that the trial court violated their due-process rights by failing to advise them of the consequences of their pleas. Ferranti, unpub op at 6. The panel also held that any error from the visit to the family home did not violate the respondents' due-process rights, id. at 8, and that the respondents waived the claim that the court's in camera interview was error, id. at 9.

         The respondents sought leave to appeal in this Court. We granted oral argument on the application and directed the parties to address these issues:

(1) whether this Court's opinion in In re Hatcher, 443 Mich. 426 (1993), correctly held that the collateral attack rule applied to bar the respondent-parents from challenging the court's initial exercise of jurisdiction over the respondents on appeal from an order terminating parental rights in that same proceeding; (2) if not, (a) by what standard should courts review the respondents' challenge to the initial adjudication, in light of the respondents' failure to appeal the first dispositional order appealable of right, see MCR 3.993(A)(1), and (b) what must a respondent do to preserve for appeal any alleged errors in the adjudication, see e.g., In re Hudson, 483 Mich. 928 (2009); (3) if Hatcher was correctly decided, whether due process concerns may override the collateral bar rule, see, In re Sanders, 495 Mich. 394 (2014), and In re Wangler, 498 Mich. 911 (2015); (4) whether a trial court is permitted to visit a respondent's home to observe its condition, and, if so, what parameters should apply to doing so; and (5) whether a trial court may interview a child who is the subject of child protective proceedings in chambers, and, if so, what parameters should apply to doing so. [In re Ferranti, 502 Mich. 906, 906 (2018).]

         II. LEGAL BACKGROUND

         We review the interpretation and application of statutes and court rules de novo. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). Whether child protective proceedings complied with a parent's right to due process presents a question of constitutional law, which we also review de novo. Id. at 403-404. De novo review means we review this issue independently, with no required deference to the courts below.

         A. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN

         Child protective proceedings are governed by the juvenile code, MCL 712A.1 et seq., and Subchapter 3.900 of the Michigan Court Rules. Any person who suspects child abuse or neglect may report their concerns to the Department. MCL 712A.11(1). The Department, after conducting a preliminary investigation, may then petition the Family Division of the circuit court to take jurisdiction over the child. MCR 3.961(A). That petition must contain, among other things, "[t]he essential facts" that, if proven, would allow the trial court to assume jurisdiction over the child. MCR 3.961(B)(3); see also MCL 712A.2(b). After receiving the petition, the trial court must hold a preliminary hearing and may authorize the filing of the petition upon a finding of probable cause that one or more of the allegations are true and could support the trial court's exercise of jurisdiction under MCL 712A.2(b). See MCR 3.965(B).[6]

         If the court authorizes the petition, the adjudication phase follows. The question at adjudication is whether the trial court can exercise jurisdiction over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter dispositional orders, including an order terminating parental rights. See Sanders, 495 Mich. at 405-406. The court can exercise jurisdiction if a respondent-parent enters a plea of admission or no contest to allegations in the petition, see MCR 3.971, or if the Department proves the allegations at a trial, see MCR 3.972. "If a trial is held, the respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has the burden of proving by a preponderance of the evidence one or more of the statutory grounds for jurisdiction alleged in the petition." Sanders, 495 Mich. at 405 (citations omitted). And "[w]hile 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, citation, and brackets omitted). The adjudication divests the parent of her constitutional right to parent her child and gives the state that authority instead.

         Once the trial court's jurisdiction is established, the case moves to the dispositional phase. In this phase, the trial court has "broad authority" to enter orders that are" 'appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained.'" Id. at 406, quoting MCL 712A.18(1). During the dispositional phase the court must hold review hearings "to permit court review of the progress made to comply with any order of disposition and with the case service plan [i.e., the family treatment plan] . . . and court evaluation of the continued need and appropriateness for the child to be in foster care." MCR 3.975(A). If the child is removed from the family home, the court must conduct a permanency planning hearing within 12 months from the date of removal. MCL 712A.19');">712A.19a(1); MCR 3.976(B)(2). This hearing results in either the dismissal of the petition and family reunification, or the court ordering the Department to petition for the termination of parental rights. MCL 712A.19');">712A.19a(4); MCR 3.976(A).

         If the Department files a termination petition, the court holds a termination hearing. See MCR 3.977. The court acts as fact-finder, MCR 3.977(I), and the rules of evidence generally do not apply, MCR 3.977(H)(2). If the court determines by clear and convincing evidence that one or more statutory grounds for termination exist, see MCL 712A.19');">712A.19b(3), the court must enter an order terminating the respondents' parental rights unless the court determines that termination is clearly not in the child's best interests. In re Trejo, 462 Mich. 341, 344; 612 N.W.2d 407 (2000).

         B. IN RE HATCHER

         In Hatcher, 443 Mich. at 428, we considered whether a respondent-parent may challenge the trial court's "assumption of subject matter jurisdiction over a minor child . . . after a termination decision and, if so, whether the entire termination proceedings should be declared void ab initio." Or more simply: whether a parent could challenge errors in the adjudication when appealing the termination of his or her parental rights.

         The Hatcher trial court authorized the filing of a petition and placement of the child with the grandmother after conducting a preliminary hearing that neither parent attended. Id. at 429. At the adjudication, both parents stipulated to the court's jurisdiction over their child, but they did not testify to or admit any facts that would support that jurisdiction. Id. at 430; see MCL 712A.2(b). The court held three dispositional hearings before the permanency planning hearing; neither parent challenged the court's jurisdiction at those hearings. Id. at 430-431. Following the permanency planning hearing, the trial court terminated both parents' rights. The father appealed, challenging the court's adjudication. He argued, and the Court of Appeals agreed, that "the termination proceedings were void ab initio, [and] that the [trial] court never assumed valid subject matter jurisdiction over the child," because neither parent ever admitted to facts supporting a statutory basis for jurisdiction. Id. at 432; see In re Waite, 188 Mich.App. 189, 208; 468 N.W.2d 912 (1991); In re Nelson; 190 Mich.App. 237, 241-242; 475 N.W.2d 448 (1991).

         We reversed. We held that the father's claim of error (the adjudication-by-stipulation) did not deprive the court of subject matter jurisdiction but "address[ed] the procedure by which the probate court proceeded after it had established subject matter jurisdiction on the basis of a validly filed petition." Hatcher, 443 Mich. at 438 (emphasis added). We explained:

[T]he probate court's subject matter jurisdiction is established when the action is of a class that the court is authorized to adjudicate, and the claim stated in the complaint is not clearly frivolous. The valid exercise of the probate court's statutory jurisdiction is established by the contents of the petition after the probate judge or referee has found probable cause to believe that the allegations contained within the petitions are true. . . . When the referee considered the facts alleged in the petition and the testimony presented, he found probable cause that the allegations were true. Consequently, it was proper for the court to invoke its jurisdiction, assuming the court also had jurisdiction of the parties, a fact not here in dispute. Procedural errors that may have occurred did not affect the probate court's subject matter jurisdiction.
Although neither the mother nor the father stipulated facts that supported the court's jurisdiction, this jurisdiction is initially established by pleadings, such as the petition, rather than by later trial proceedings that may establish by a preponderance of the evidence that a child is within the continued exercise of the probate court's subject matter jurisdiction. [Id. at 437-438.]

         Again, more simply: Hatcher held that the trial court's error did not deprive it of subject matter jurisdiction-it was simply an adjudicative error. And the father could not appeal that error; he should have either appealed the order authorizing the filing of the petition[7] or challenged the issue at a dispositional hearing. Id. at 438 ("The respondent could have appealed the court's exercise of its statutory jurisdiction by challenging the sufficiency of the petition . . . . Alternatively, he could have pursued a number of statutory proceedings designed to redress an erroneous exercise of jurisdiction."), citing MCL 712A.19');">712A.19; MCL 712A.21. Because he did neither, we prohibited his termination challenge, calling it a "collateral attack." Id. at 444 ("Our ruling today severs a party's ability to challenge a probate court decision years later in a collateral attack where a direct appeal was available."). That characterization was novel and inconsistent with our collateral-attack jurisprudence.[8]

         Later decisions summarized the rule from Hatcher as barring a respondent-parent from challenging errors in the adjudicative phase in an appeal from an order terminating the respondent's parental rights, unless the termination of rights occurs at the initial dispositional hearing. See In re SLH, 277 Mich.App. 662, 668-669; 747 N.W.2d 547 (2008).[9]

         III. ANALYSIS

         A. RESPONDENTS' ADJUDICATORY PLEAS AND IN RE HATCHER

         The respondents believe that their due-process rights were violated because their pleas were not knowingly and voluntarily made. They object to the trial court's failure to inform them that they had a right to a jury trial on the allegations in the petition, at which the Department would have to prove those allegations by a preponderance of the evidence and the respondents would be permitted to call their own witnesses and cross-examine those produced by the Department. The respondents also fault the trial court for its failure to advise them that their pleas could later be used as evidence to terminate their parental rights. And about Hatcher, the respondents argue that it was wrongly decided because it misunderstood child protective proceedings. We agree.

         The respondents have a fundamental right to direct the care, custody, and control of JF. See Sanders, 495 Mich. at 415. And the Due Process Clause of the Fourteenth Amendment requires that, for a plea to constitute an effective waiver of a fundamental right, the plea must be voluntary and knowing. See In re Wangler, 498 Mich. 911, 911 (2015) (stating that "the manner in which the trial court assumed jurisdiction violated the respondent-mother's due process rights" because the trial court failed to follow MCR 3.971(C)(1) and (2) before accepting the respondent's adjudicatory plea); see also People v Cole, 491 Mich. 325, 332-333; 817 N.W.2d 497 (2012) ("For a plea to constitute an effective waiver of . . . rights, the Due Process Clause of the Fourteenth Amendment requires that the plea be voluntary and knowing.").

         Our court rules reflect this due-process guarantee. MCR 3.971(C)(1) demands that the trial court ensure that a respondent's plea be knowingly, understandingly, and voluntarily made before the court can accept it. And MCR 3.971(B) requires the trial court to advise the respondent, "on the record or in a writing that is made a part of the file," of the allegations in the petition, the right to an attorney, the rights the respondent will be waiving by entering a plea, the consequences of that plea (including the possibility that the plea will "be used as evidence in a proceeding to terminate parental rights," MCR 3.971(B)(4)), and to provide advice about the respondent's posttermination support obligations.

         The Department concedes that the trial court did not comply with these rules, violating the respondents' due-process rights. Wangler, 498 Mich. at 911. Recognizing that Hatcher would bar them from appealing this claim of error, the respondents ask us to revisit our decision in Hatcher and either overrule it or carve out (yet another) exception to its collateral-bar rule when application would prevent a respondent from vindicating a due-process violation.

         Hatcher made a foundational mistake; it erroneously applied the rule from Jackson City Bank & Trust Co v Fredrick, 271 Mich. 538; 260 N.W. 908 (1935)-that a court's exercise of jurisdiction cannot be collaterally attacked in a second proceeding-to what is a single, continual proceeding.

         In Jackson City Bank, 271 Mich. at 544-545, we explained that

[w]hen there is a want of jurisdiction over the parties, or the subject-matter, no matter what formalities may have been taken by the trial court, the action thereof is void because of its want of jurisdiction, and consequently its proceedings may be questioned collaterally as well as directly. They are of no more value than as though they did not exist. But in cases where the court has undoubted jurisdiction of the subject matter, and of the parties, the action of the trial court, though involving an erroneous exercise of jurisdiction, which might be taken advantage of by direct appeal, or by direct attack, yet the judgment or decree is not void though it might be set aside for the irregular or erroneous exercise of jurisdiction if appealed from. It may not be called in question collaterally.

         Put differently, the "collateral bar" rule generally prohibits a litigant from indirectly attacking a prior judgment in a later, separate action, unless the court that issued the prior judgment lacked jurisdiction over the person or subject matter in the first instance. See In re Ives, 314 Mich. 690, 696; 23 N.W.2d 131 (1946). Instead, the litigant must seek relief by reconsideration of the judgment from the issuing court or by direct appeal.[10]

         Hatcher applied the collateral-bar rule to conclude that a respondent who appeals a defect in the adjudicative phase at the end of the child protective proceeding (in an appeal from an order terminating parental rights) is "collaterally" attacking that very same child protective proceeding. But that holding failed to recognize that "[a] child protective proceeding is 'a single continuous proceeding'" that begins with a petition, proceeds to an adjudication, and-unless the family has been reunified-ends with a determination of whether a respondent's parental rights will be terminated. In re Hudson, 483 Mich. 928, 935 (2009) (Corrigan, J., concurring), quoting In re LaFlure, 48 Mich.App. 377, 391; 210 N.W.2d 482 (1973).

         Collateral-bar jurisprudence makes the Hatcher Court's mistake obvious. The rule bars a litigant from challenging a ruling or judgment in a later and separate case. Thus, in Jackson City Bank, 271 Mich. at 546, we held that the plaintiffs, heirs of the defendant's deceased second husband, were barred from asserting claims that challenged the validity of the defendant's divorce from her first. The other cases Hatcher cited agree. See Life Ins Co of Detroit v Burton, 306 Mich. 81, 84-85; 10 N.W.2d 315 (1943) (defendant-surety barred from seeking reformation of a surety bond in a later collection action brought by the plaintiff-creditor); Edwards v Meinberg, 334 Mich. 355; 54 N.W.2d 684');">54 N.W.2d 684 (1952) (error in venue did not divest the issuing court of subject matter jurisdiction, so the plaintiff was barred from asserting that the earlier judgment against him was invalid). In all these cases, the party seeking to challenge the earlier ruling or judgment did so in a separate, later proceeding (and even in a different forum).

         Nor did Hatcher explain its novel application of the rule. The Hatcher Court held that the trial court's error in the adjudication did not deprive the court of subject matter jurisdiction, as the Court of Appeals thought, but merely affected "the procedure by which the probate court proceeded after it had established subject matter jurisdiction on the basis of a validly filed petition." Hatcher, 443 Mich. at 438. So far, so good. But Hatcher's next step is unexplained; it went on to apply the collateral-bar rule from Jackson City Bank to bar appellate review of the error with no reasoning to make understandable why appealing the claim of error in the adjudication amounted to a collateral attack.

         More confusing still, the Court's prescription for what the respondent-father should have done contradicts its conclusion. The Court reasoned that the father could have raised the adjudication error at one of the dispositional review hearings or even in a motion for rehearing from the order terminating parental rights. Id. at 436.[11] But this rationale conflicts with the Court's conclusion that his appeal raising that same claim amounted to a collateral attack. True, a party's failure to timely assert a right in the trial court generally means that any resulting error will be treated as "unpreserved" if challenged on appeal. See People v Carines, 460 Mich. 750; 597 N.W.2d 130 (1999); People v Grant, 445 Mich. 535; 520 N.W.2d 123 (1994). But issue preservation dictates the appellate standard of review; it does not transform direct review into collateral attack. See Carines, 460 Mich. at 761-764 (discussing the plain-error doctrine).

         Hatcher was wrongly decided.

         But we don't disrupt precedent whenever that's the case. We have to consider whether Hatcher's precedential value compels us to retain its rule of decision under the principles of stare decisis. Coldwater v Consumers Energy Co, 500 Mich. 158, 172; 895 N.W.2d 154 (2017) (stating that the mere fact that "a case was wrongly decided, by itself, does not necessarily mean that overruling it is appropriate"). The stare decisis analysis should not be" 'applied mechanically, '" id. at 173 (citation omitted), but generally we consider these principles: "whether the decision defies practical workability, whether reliance interests would work an undue hardship were the decision to be overruled, and whether changes in the law or facts no longer justify the decision," id.

         This Court's growing list of "exceptions" to Hatcher deserves emphasis at the front end of this analysis. See, e.g., Sanders, 495 Mich. 394 (reversing a termination in which one parent was improperly adjudicated as unfit and holding that the one-parent doctrine is unconstitutional); In re Mays, 490 Mich. 993 (2012) (reversing a termination after the trial court made an erroneous factual finding during the adjudication phase); In re Mason, 486 Mich. 142; 782 N.W.2d 747');">782 N.W.2d 747 (2010) (reversing a termination based on the failure to facilitate the respondent's involvement and participation during the adjudication and dispositional phases); In re Hudson, 483 Mich. 928 (remanding when the trial court failed to advise the respondent that her plea could be used to terminate her parental rights); In re Mitchell, 485 Mich. 922 (2009) (same); In re Jones, 499 Mich. 862 (2016) (reversing a parental termination order after the Court of Appeals held that the respondent's claims were barred by Hatcher); Wangler, 498 Mich. at 911 (same). While we overrule Hatcher only now, if these exceptions haven't fully swallowed the rule, it is surely most of the way through the chewing process. The resulting disruption affects our analysis of each of the stare decisis principles. To those now.

         First, a rule of decision defies practical workability if it has proved difficult to apply or implement. See, e.g., Montejo v Louisiana, 556 U.S. 778, 792; 129 S.Ct. 2079; 173 L.Ed.2d 955 (2009). On first blush, Hatcher might appear easy to apply-an appellate court reviewing a termination decision should simply reject any claims relating to the adjudication. But that has not been our experience. Instead, the number of exceptions to Hatcher is good evidence that its rule defies simple application, especially when a respondent's due-process rights are violated in the adjudication. And if history is our guide, trying to craft yet another exception to Hatcher here will not end the matter. This factor does not favor keeping Hatcher.

         We also consider reliance interests, including "whether reliance interests would work an undue hardship were the decision to be overruled . . . ." Coldwater, 500 Mich. at 173. The question is "whether the previous decision has become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations." Id. (quotation marks and citation omitted). Hatcher has scant application; it just imposes procedural limitations on a respondent's ability to challenge errors in the adjudication. Given this, overruling Hatcher would not cause "practical, real-world dislocations" but simply "readjustments" in litigation.

         The litigants and practitioners who had to decide whether to raise a claim of error within the procedural restrictions of Hatcher had little stability, given our growing exceptions to it. And lawyers and litigants are not similarly situated. Lawyers know both about trial court error and Hatcher's rule (and its exceptions), but litigants are likely aware of neither. Take this case: the trial court's error meant that the respondents were never told what rights they were giving up, nor were they advised that they couldn't appeal the due-process violation that resulted from their defective plea unless they did so immediately.

         Finally, we consider whether changes in the law or facts no longer justify the decision. See Coldwater, 500 Mich. at 174. Our growing list of Hatcher cutouts favors overruling it. Continuing Hatcher's death by a thousand cuts would leave litigants and courts unsure of whether they can appeal an adjudicative error in an appeal from an order terminating parental rights. The erosion of the rule by its exceptions has created uncertainty; we should be providing clarity.

         Rather than create yet another exception to Hatcher, we overrule it. We are mindful of the finality concerns that motivated the Court's decision to adopt the rule. See Hatcher, 443 Mich. at 444 (explaining that the Court's holding would "provide repose to [those] who rely upon the finality of probate court decisions").[12] But we must balance the interest in finality against the Legislature's intent as expressed in the juvenile code to support children in their own homes, see MCL 712A.1(3) ("This chapter shall be liberally construed so that each juvenile coming within the court's jurisdiction receives the care, guidance, and control, preferably in his or her own home, conducive to the juvenile's welfare and the best interest of the state."), and the protection of the constitutional rights of families. "The right to parent one's children is essential to the orderly pursuit of happiness by free men and is perhaps the oldest of the fundamental liberty interests[.]" Sanders, 495 Mich. at 409, quoting Meyer v Nebraska, 262 U.S. 390, 399-400; 43 S.Ct. 625; 67 L.Ed. 1042 (1923), and Troxel v Granville, 530 U.S. 57, 65; 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000) (opinion by O'Connor, J.) (cleaned up).

         And "there will normally be no reason for the State to inject itself into the private realm of the family" because "there is a presumption that fit parents act in the best interests of their children." Troxel, 530 U.S. at 68. Thus, "[w]hen a child is parented by a fit parent, the state's interest in the child's welfare is perfectly aligned with the parent's liberty interest." Sanders, 495 Mich. at 416. For that reason, it is the "[a]djudication [that] protects the parents' fundamental right to direct the care, custody, and control of their children, while also ensuring that the state can protect the health and safety of the children." Id. at 422.

         But Hatcher disrupts the careful balancing of interests in our juvenile code by preventing judicial review of meritorious claims of defects in the adjudication. That is, it prevents review of mistakes in the government process that permanently separates a parent from a child. A parent's only remedy under Hatcher is by way of an interlocutory appeal, disincentivizing him or her from timely cooperating with the Department and further delaying a final determination. Hatcher disserves parents, their children, and the state. It's time to disavow it.

         On to the merits. The parties agree that adjudication errors raised after the trial court has terminated parental rights are reviewed for plain error. See Mitchell, 485 Mich. at 922 (reviewing for plain error the trial court's failure to timely appoint counsel for the respondent and failure to advise the respondent that his plea could later be used in a proceeding to terminate his parental rights); Hudson, 483 Mich. at 928 (same). The respondents must establish that (1) error occurred; (2) the error was "plain," i.e., clear or obvious; and (3) the plain error affected their substantial rights. Carines, 460 Mich. at 763. And the error must have "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings[] . . . ." Id. (citation and quotation marks omitted; alteration in original).[13]

         The Department acknowledges that the first and second prongs are satisfied. Due process and our court rules require a trial court to advise respondents-parents of the rights that they will waive by their plea and the consequences that may flow from it. The court erred by failing to advise these respondents of ...


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