20.3Appeals to the Michigan Court of Appeals

A brief discussion on filing an appeal with the Michigan Court of Appeals is contained in this section. “Except as modified by [MCR 3.993], chapter 7 of the Michigan Court Rules governs appeals from the family division of the circuit court.” MCR 3.993(C)(1). For additional information or requirements, see MCR 7.200 et seq.

A.Appeal of Right

Under MCR 3.993(A),¹ a party aggrieved by a court order may appeal as of right any of the following orders:

“(1) any order removing a child from a parent’s care and custody,

(2) an initial order of disposition following adjudication in a child protective proceeding,

(3) an order of disposition placing a minor under the supervision of the court in a delinquency proceeding,

[Note: The trial court’s order removing a child from the respondent-mother’s custody is appealable by right where the DHHS retained supervision over the child, but the child was physically residing in the respondent-mother’s home at the time the trial court entered the supplemental dispositional order removing the child from the extended home visit. In re EP, 234 Mich App 582, 590-591 (1999), overruled on other grounds by In re Trejo, 462 Mich 341 (2000).²]

(4) an order terminating parental rights,^[3]

(5) any order required by law to be appealed to the Court of Appeals,

(6) any order involving an Indian child that is subject to potential invalidation under [MCL 712B.39] or [25 USC 1914], which includes, but is not limited to, an order regarding:

(a) recognition of the jurisdiction of a tribal court pursuant to MCL 712B.7, MCL 712B.29, or 25 USC 1911;

(b) transfer to tribal court pursuant to MCL 712B.7 or 25 USC 1911;

(c) intervention pursuant to MCL 712B.7 or 25 USC 1911;

(d) extension of full faith and credit to public acts, records, and judicial proceedings of an Indian tribe pursuant to MCL 712B.7 or 25 USC 1911;

(e) removal of a child from the home, placement into foster care, or continuance of an out-of-home placement pursuant to MCL 712B.9, MCL 712B.15, MCL 712B.25, MCL 712B.29, or 25 USC 1912;

(f) termination of parental rights pursuant to MCL 712B.9, MCL 712B.15, or 25 USC 1912;

(g) appointment of counsel pursuant to MCL 712B.21 or 25 USC 1912;

(h) examination of reports pursuant to MCL 712B.11 or 25 USC 1912;

(i) voluntary consent to or withdrawal of a voluntary consent to a foster care placement or to a termination of parental right pursuant to MCL 712B.13, MCL 712B.25, MCL 712B.27, or 25 USC 1913;

(j) foster care, pre-adoptive, or adoptive placement of an Indian child pursuant to MCL 712B.23;^[4] and

(7) any final order.”

The requirements for filing an appeal of right appear in MCR 7.204(A)-(H).

Filing an appeal does not stay enforcement of a court order, “unless the court to which the appeal is taken specifically orders the suspension.” MCL 600.1041. See also MCR 7.209(A)(1).

“[T]he 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. Instead, the litigant must seek relief by reconsideration of the judgment from the issuing court or by direct appeal. . . . [However,] 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” and “an appeal of an adjudication error in an appeal from an order terminating parental rights is not a collateral attack. The collateral-bar rule does not apply within one child protective case, barring some issues from review.” In re Ferranti, 504 Mich 1, 22-23, 35 (2019) (quotation marks and citations omitted). According to the Ferranti Court, In re Hatcher, 443 Mich 426 (1993), made a foundational mistake; it erroneously applied the rule from Jackson City Bank & Trust Co v Frederick, 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.” Ferranti, 504 Mich at 22. “Hatcher was not a collateral attack. It was a direct appeal of an (unpreserved) adjudicative error.”⁵ Ferranti, 504 Mich at 20 n 8. “[I]ssue preservation dictates the appellate standard of review; it does not transform direct review into collateral attack.” Id. at 25.

“If termination [of a parent’s parental rights] occurs at the initial disposition as a result of a request for termination contained in the original, or amended, petition for jurisdiction, then an attack on the adjudication is direct and not collateral, as long as the appeal is from an initial order of disposition containing both a finding that an adjudication was held and a finding that the children came within the jurisdiction of the court.’ In re SLH, 277 Mich App 662, 668-669 (2008).

Time requirements. “The time limit for an appeal of right is jurisdictional. See MCR 7.203(A).” MCR 7.204(A).

The Court of Appeals has jurisdiction over an aggrieved party’s appeal of right of certain orders entered under the Juvenile Code or of any final order. See MCR 3.993(A); MCR 7.203(A)(2).

“Except where another time is provided by law or court rule, an appeal of right in any civil case must be taken within 21 days.”⁶ MCR 7.204(A)(1). The 21-day period begins with the entry of:⁷

“(a) the judgment or order appealed from;

(b) an order appointing counsel[;]

(c) an order denying a request for appointment of counsel in a civil case in which an indigent party is entitled to appointed counsel, if the trial court received the request within the initial 21-day period; or

(d) an order deciding a postjudgment motion for new trial, rehearing, reconsideration, or other relief from the order or judgment appealed, if the motion was filed within the initial 21-day appeal period or within any further time that the trial court has allowed for good cause during that 21-day period.” MCR 7.204(A)(1).

B.Appeal by Leave/Delayed Leave

The Court of Appeals may grant leave to appeal all orders not listed in MCR 3.993(A). MCR 3.993(B).

Appeal by leave is available to a party who wishes to appeal a judgment or order that is not considered a final judgment appealable of right, or to a party who failed to timely file an appeal of right (also known as a delayed appeal). MCR 3.993(B); MCR 7.203(B)(1); MCR 7.203(B)(5).

Time requirements for leave to appeal. “The time limit for an application for leave to appeal is jurisdictional. See MCR 7.203(B).”⁸ MCR 7.205(A). 

“Except as otherwise provided in this rule, an application for leave to appeal must be filed within:

(a) 21 days after entry of the judgment or order to be appealed from or within other time as allowed by law or rule; or

(b) 21 days after entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed, if the motion was filed within the initial 21-day appeal period or within further time the trial court has allowed for good cause during that 21-day period.” MCR 7.205(A)(1).

The Court of Appeals may not grant an application for leave to appeal an order terminating parental rights filed more than 63 days after entry of a judgment on the merits, or more than 63 days after entry of an order denying rehearing or reconsideration. MCR 3.993(C)(3); MCR 7.205(A)(3).

Time requirements for delayed leave to appeal. When an application for leave to appeal is not filed within the time prescribed in MCR 7.205(A)(1), “a delayed application for leave to appeal may be filed within 6 months of the entry of a judgment or order described in [MCR 7.205(A)(1)].”⁹ MCR 7.205(A)(4)(a).

If the Court of Appeals dismisses for lack of jurisdiction a claim of appeal governed by MCR 7.205(A)(1), “a delayed application for leave to appeal may also be filed within 21 days of the entry of the dismissal order or an order denying reconsideration of that order, provided that:

(i) the delayed application is taken from the same lower court judgment or order as the claim of appeal, and

(ii) the claim of appeal was filed within the applicable time period in [MCR 7.205(A)(1)].” MCR 7.205(A)(4)(b).

“A delayed application under [MCR 7.205] must contain a statement of facts explaining the reasons for delay. The appellee may challenge the claimed reasons in the answer. The court may consider the length of and the reasons for delay in deciding whether to grant the delayed application.” MCR 7.205(4).

C.Termination of Parental Rights: Appointment of Appellate Counsel

A respondent’s right to request and be appointed appellate counsel after termination of his or her parental rights is governed by MCR 3.993. MCR 3.977(J)(2). “In any appeal as of right, an indigent respondent is entitled to appointment of an attorney to represent the respondent on appeal and to preparation of relevant transcripts.” MCR 3.993(A).

The respondent must request the appointment of appellate counsel “within 21 days after notice of the order is given or an order is entered denying a timely filed postjudgment motion.” MCR 3.993(D)(1).

If the respondent makes a timely request for the appointment of appellate counsel and the court determines that the respondent is not financially able to provide an attorney, the court must, within 14 days after the respondent’s request is filed, appoint an attorney for the respondent.¹⁰ MCR 3.993(D)(2). The order appointing counsel “must be entered on a form approved by the State Court Administrator’s Office, entitled ‘Claim of Appeal and Order Appointing Counsel[.]‘” MCR 3.993(D)(3).

Note: See generally, In re Conley, 216 Mich App 41, 45 (1996), where the Court of Appeals refused to require the appointment of appellate counsel when the only reason to deny the request for counsel was the lateness of the request; appointment in such circumstances is within the court’s discretion.

If the court appoints counsel for the respondent, the court must immediately send to the Court of Appeals:

(1) a copy of the Claim of Appeal and Order Appointing Counsel;

(2) a copy of the judgment or order being appealed; and

(3) a copy of the complete register of actions in the case. MCR 3.993(D)(3).

Note: The trial court’s entry of the order appointing counsel constitutes a timely filed claim of appeal for purposes of MCR 7.204. MCR 3.993(D)(3).

The court must also file in the Court of Appeals proof that the Claim of Appeal and Order Appointing Counsel was served on:

(1) The respondent(s);

(2) The respondent(s)’ appointed counsel;

(3) The court reporter(s)/recorder(s);

(4) The petitioner;

(5) The prosecuting attorney;

(6) The child(ren)’s lawyer-guardian ad litem under MCL 712A.13a(1)(f);¹¹ and

(7) The child(ren)’s guardian ad litem or attorney (if any).¹² MCR 3.993(D)(3).

“If the court appoints appellate counsel for respondent, the court must order the complete transcripts of all proceedings prepared at public expense.” MCR 3.993(E).

Note: See MLB v SLJ, 519 US 102, 107 (1996) (it is inconsistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a state to “condition appeals from trial court decrees terminating parental rights on the affected parent’s ability to pay record preparation fees”).

D.Court Determination

1.Decision on Application for Leave to Appeal

Oral argument is not heard on an application for leave to appeal. MCR 7.205(E)(1). Rather, the application is decided solely on the documentation filed, and, in an administrative tribunal or agency appeal, the certified record. Id.

On an application for leave to appeal, the Court of Appeals may do any of the following:

(1) Grant the application.

(2) Deny the application.

(3) Enter a final decision.

(4) Grant other relief.

(5) Request additional information from the record.

(6) Require a certified statement of proceedings and facts from the trial court or administrative tribunal or agency. MCR 7.205(E)(2).

If an application is granted, the application for leave to appeal proceeds as an appeal of right except that a party need not file a claim of appeal and some time limits run from the date the order granting leave is certified. See MCR 7.205(E)(3).

2.Standards of Review

a.Clear Legal Error Standard

•“[A] trial court’s factual findings as well as its ultimate determination that a statutory ground for termination of parental rights has been proved by clear and convincing evidence” is reviewed for clear error. In re Mason, 486 Mich 142, 152 (2010), citing MCR 3.977(K) (“[t]he clearly erroneous standard shall be used in reviewing the court’s findings on appeal from an order terminating parental rights.”).

•A trial court’s decision regarding a child’s best interests is reviewed for clear error. In re Trejo, 462 Mich 341, 356-357 (2000).

“‘A finding is ‘clearly erroneous’ if, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made.’” In re Long, 326 Mich App 455, 460 (2018), quoting In re HRC, 286 Mich App 444, 459 (2009).

However, the Court of Appeals cannot substitute its judgment for that of the trial court. In re Hall (Dylan), 483 Mich 1031 (2009) (Michigan Supreme Court reversed the Court of Appeals and reinstated the trial court’s ruling where “[t]he Court of Appeals misapplied the clear error standard by substituting its judgment for that of the trial court . . . and rendered a decision that was contrary to the clear and convincing evidence supporting termination of the respondent-mother’s parental rights . . . .”); In re Krupa, 490 Mich 1004, 1004 (2012) (Michigan Supreme Court reversed the Court of Appeals and remanded the case to the Court of Appeals to address the respondent’s remaining issues where “[t]he Court of Appeals misapplied the clear error standard by engaging in improper fact-finding and substituting its judgment for that of the trial court[,] . . . [and] [a]s a result, the Court of Appeals rendered a decision that was contrary to the clear and convincing evidence supporting the statutory grounds for termination under MCL 712A.19b(3)(g) and MCL 712A.19b(3)(j)[]”); In re Engle, 480 Mich 931 (2007) (Michigan Supreme Court reversed the Court of Appeals and reinstated the trial court’s ruling where “[t]he Court of Appeals misapplied the clear error standard by substituting its judgment for that of the trial court. . . , failed to acknowledge that the applicable statutes and court rules do not require efforts for reunification or provision of services under the circumstances of this case. . . , and rendered a decision that was contrary to the clear and convincing evidence supporting the statutory grounds for termination and the best interests of the minor children . . . .”).

b.Abuse of Discretion Standard

•A refusal to grant a request for rehearing is reviewed for an abuse of discretion. In re Toler, 193 Mich App 474, 478 (1992).

“At its core, an abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” People v Babcock, 469 Mich 247, 269 (2003). See also Maldonado v Ford Motor Co, 476 Mich 372, 388 (2006), which adopted the Babcock Court’s articulation of the abuse of discretion standard as the default standard.¹³ “An abuse of discretion occurs . . . when the trial court chooses an outcome falling outside this principled range of outcomes.” Babcock, supra at 269.

c.De Novo

•Questions of law such as the interpretation and application of statutes and court rules, In re Mason, 486 Mich at 152, and constitutional challenges, In re Rood, 483 Mich 73, 91 (2009), are reviewed de novo.

•Claims of instructional error are reviewed de novo. In re Vandalen, 293 Mich App 120, 133 (2011).

Where a claim of instructional error is made, reversal is not warranted if the error did not effect the outcome of the trial. In re Vandalen, 293 Mich App at 133. “‘If, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, no error requiring reversal occurs.’” In re Vandalen, supra, quoting Lewis v LeGrow, 258 Mich App 175, 211 (2003).

d.Plain Error

•“[A]djudication errors raised after the trial court terminated parental rights are reviewed for plain error.” In re Ferranti, 504 Mich 1, 29 (2019).

“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. And the error must have ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings[] . . . ‘” In re Ferranti, 504 Mich at 29 (quoting People v Carines, 460 Mich 750, 763 (1999) and applying the criminal procedure plain-error test in appeals to juvenile proceedings) (citation omitted; alteration in original).