20.2Appeals From Family Division Orders
MCR 3.993(A) provides that the following Family Division orders are appealable to the Court of Appeals by right:
“(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,
(4) an order granting a motion to waive jurisdiction as provided in MCR 3.950(E)(1)(c).
(5) an order terminating parental rights,
(6) any order required by law to be appealed to the Court of Appeals,
(7) any order involving an Indian child that is subject to potential invalidation under [MCL 712B.39 (MIFPA)] or [25 USC 1914 (ICWA)], 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; and
(8) any final order.”1
An appeal under [MCR 3.993(A)(3)2] may be taken only from “an ‘order of disposition.’” In re McCarrick, 307 Mich App 436, 461 (2014).
“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).
“All orders not listed in [MCR 3.993](A) are appealable to the Court of [A]ppeals by leave.” MCR 3.993(B).
The court must advise a juvenile of their appellate rights set forth in MCR 3.937 at the conclusion of a dispositional hearing under MCR 3.943 or any delinquency hearing at which the court orders that the juvenile be removed from a parent’s care and custody. MCR 3.937(A).3
If a case has been designated, and the court determines that it will impose an adult or delayed sentence, it must conduct the sentencing hearing in accordance with MCR 6.425. including the appointment of appellate counsel as provided in MCR 6.425(G). MCR 3.955(C); MCR 6.425(F).4
If the court waives jurisdiction over a juvenile in a traditional waiver proceeding, the court must advise the juvenile of the right to appeal the waiver decision and of the right to appointed appellate counsel in accordance with MCR 3.993(D)(5). MCR 3.950(E)(1)(c)(i)-(iii).5
D.Request and Appointment of Counsel
The court must advise the juvenile as provided in MCR 6.425(F) after a decision at a sentencing hearing. MCR 6.931(E)(6). “Requests for and appointment of appellate counsel are subject to the procedures in MCR 6.425(G).” MCR 6.931(E)(6).
“To preserve an appeal by right from an order listed in [MCR 3.993(A)], a request for appointment of appellate counsel must be made 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). “Except as provided in MCR 3.993(C)(3), if a request for appointment of appellate counsel is filed within 6 months of entry of the order to be appealed and the court finds that the respondent is financially unable to retain an attorney, the court must
(a) in child protective proceedings, appoint an attorney within 14 days after the respondent’s request is filed.
(b) in all other proceedings subject to [MCR 3.993], appoint an attorney as provided in [MCR 3.993(D)(5)].
The chief judge of the court shall bear primary responsibility for ensuring that the appointment is made within the deadline stated in this rule.” MCR 3.993(D)(2).
“All requests for the appointment of appellate counsel must be granted or denied on forms approved by [SCAO]. If the order being appealed is appealable by right and the request for appointment of appellate counsel was filed within the time provided in [MCR 3.993(D)(1)], the order described in [MCR 3.993(D)(2)] must be entered on a form entitled ‘Claim of Appeal and Order Appointing Counsel.’” MCR 3.993(D)(3). The court must immediately send the Court of Appeals a copy of the order appointing counsel, a copy of the judgment or order being appealed, and a complete copy of the register of actions in the case, and the court must file proof that the order appointing counsel was served “on the respondent(s), appointed counsel for the respondent(s), the court reporter(s)/recorder(s), petitioner, the prosecuting attorney, the lawyer-guardian ad litem for the child(ren) under MCL 712A.13a(1)(f), and the guardian ad litem or attorney (if any) for the child(ren).” MCR 3.993(D)(4). Entry of an order appointing counsel pursuant to MCR 3.993(D) “constitutes a timely filed claim of appeal for the purposes of MCR 7.204.” MCR 3.993(D)(4).
“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).
E.Proceedings Subject to Appointment of Appellate Counsel via Michigan Assigned Counsel System
“A request for the appointment of appellate counsel in a proceeding subject to [MCR 3.993(D)(5)6] must be deemed filed on the date it is received by the court or the Michigan Appellate Assigned Counsel System (MAACS), whichever is earlier.” MCR 3.993(D)(5)(a).
“Within 7 days after receiving a juvenile’s request for a lawyer, or within 7 days after the disposition of a postjudgment motion if one is filed, the trial court must submit the request, the order to be appealed, the register of actions, and any additional requested information to MAACS under procedures approved by the Appellate Defender Commission for the preparation of an appropriate order granting or denying the request.” MCR 3.993(D)(5)(b). “The court must notify MAACS if it intends to deny the request.” Id.
“Within 7 days after receiving a request and related information from the trial court, MAACS must provide the court with a proposed order appointing appellate counsel or denying the appointment of appellate counsel.” MCR 3.993(D)(5)(c). “A proposed appointment order must name the State Appellate Defender Office or an approved private attorney who is willing to accept an appointment for the appeal.” Id.
“Within 7 days after receiving a proposed order from MAACS, the trial court must rule on the request for a lawyer. If the juvenile is indigent, the court must enter an order appointing a lawyer if the request for a lawyer is filed within 6 months.” MCR 3.993(D)(5)(d). “An order denying a request for the appointment of appellate counsel must include a statement of reasons and must inform the juvenile that the order denying the request may be appealed by filing an application for leave to appeal in the Court of Appeals under MCR 7.205.” MCR 3.993(D)(5)(d).
“The trial court must serve MAACS with a copy of its order granting or denying a request for a lawyer.” MCR 3.993(D)(5)(e). “Unless MAACS has agreed to provide the order to any of the following, the trial court must also serve a copy of its order on the juvenile, the juvenile’s parents, the juvenile’s attorney, the petitioner, and, if the order includes transcripts, the court reporter(s)/recorder(s).” Id.
F.Order Revoking Juvenile Probation
If the Family Division revokes juvenile probation and places the minor under the supervision of the court, the probation revocation order is appealable by right under MCR 3.993(A)(3).7 However, if the juvenile did not appeal from the initial disposition, errors in the initial proceeding may not be raised on appeal from the probation revocation. In re Madison, 142 Mich App 216, 219 (1985), citing People v Pickett, 391 Mich 305, 316-317 (1974).8
G.Suspension of Order on Appeal
MCL 600.1041 provides, in relevant part:
“The pendency of an appeal from the family division of circuit court in a matter involving the disposition of a juvenile or, in a case where the family division has ancillary jurisdiction, from an order entered pursuant to the mental health code . . . shall not suspend the order unless the court to which the appeal is taken specifically orders the suspension.”
“An application for a delayed appeal from an order of the family division of circuit court in a matter involving the disposition of a juvenile shall be filed within 6 months after entry of the order.” MCL 600.1041.
1 See MCR 7.202(6) for the applicable definition of “final order.”
2 Formerly MCR 3.993(A)(1). See ADM File No. 2015-21, effective June 12, 2019.
3 See Section 10.11 for additional information on MCR 3.937.
4 See Section 20.2(D) for information on request and appointment of counsel.
5 See Section 20.2(D) for information on request and appointment of counsel.
6 MCR 3.993(D)(5) “is not applicable to child protective proceedings.” MCR 3.993(D)(5).
7 Formerly MCR 3.993(A)(1). See ADM File No. 2015-21, effective June 12, 2019.
8 See Chapter 11 for a discussion of probation violations in delinquency cases.