If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

FOR PUBLICATION

In re J. LOVITT, Minor. April 11, 2024

9:15 a.m.

No. 367124

Lenawee Circuit Court

Family Division

LC No. 17-001035-NA

Before: CAVANAGH, P.J., and K. F. KELLY and RICK, JJ.

K. F. KELLY, J.

Respondent-mother appeals by right the trial court’s order terminating her parental rights 

to the minor child, JL. The record demonstrates that respondent was not properly served with the 

summons and supplemental petition seeking termination of her parental rights, and when she failed 

to appear for the corresponding termination hearing, her attorney sought and was granted 

withdrawal from the case. Because respondent was not properly served with the summons and 

supplemental petition, and was denied the right to counsel and the right to effective counsel at the 

termination hearing when counsel sought, and the trial court permitted, withdrawal, we vacate the 

trial court’s order terminating respondent’s parental rights and remand for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

In 2017, petitioner, the Department of Health and Human Services (“DHHS”), petitioned 

the court to remove JL from respondent’s care. The petition alleged, among other things, physical 

abuse, improper supervision, educational neglect, domestic violence, and mental health neglect. 

Respondent entered a no-contest plea to allow the court to take jurisdiction over the child and 

ordered respondent to participate in a case service plan that included a psychological evaluation, 

domestic violence classes, attendance at the child’s medical and mental health appointments, 

participation in weekly supervised parenting time, and the maintenance of suitable housing. After 

approximately 11 months of reunification services, JL was returned to respondent’s care with inhome services and shortly thereafter the court terminated its jurisdiction and closed the case. After 

the court dismissed the case, respondent stopped participating in services.

Approximately three years later, Children’s Protective Services (“CPS”) investigated 

respondent again for similar troubling conduct. When respondent refused to cooperate with the 
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investigation and participate in voluntary services, DHHS petitioned the court to again take 

jurisdiction over JL and remove him from respondent’s care. After a jury trial in June 2022, the 

court exercised jurisdiction over the child and ordered respondent to participate in and benefit from 

a treatment plan designed to improve her parenting skills and address domestic violence and 

suspected drug issues in respondent’s home. Following respondent’s complete refusal to 

participate in services, and her limited engagement in parenting time, DHHS filed a supplemental 

petition on June 20, 2023, seeking termination of respondent’s parental rights under MCL 

712A.19b(3)(a)(ii) (desertion for 91 days or more without seeking custody), (c)(i) (failure to rectify 

conditions that led to adjudication), (g) (failure to provide proper care and custody), and (j)

(reasonable likelihood the child will be harmed if returned to parent).

Respondent did not appear at the July 6, 2023 termination hearing. Shortly after her 

absence was noted, her attorney sought and was granted withdrawal from the case. DHHS then 

took testimony from its only witness, Fransheska Madrid, the foster care caseworker. Thereafter, 

the court found clear and convincing evidence to terminate respondent’s parental rights. The court 

did not identify the statutory grounds on which it relied, but indicated that “at the very least, one 

statutory ground for termination” had been established by clear and convincing evidence. The 

court also concluded that termination of respondent’s parental rights was in the child’s best 

interests. This appeal followed.

II. STANDARDS OF REVIEW

Because respondent did not raise the issue of ineffective service, lack of personal 

jurisdiction, or right to counsel in the trial court, the issues are unpreserved. Demski v Petlick, 309 

Mich App 404, 426; 873 NW2d 596 (2015). Unpreserved issues are reviewed for plain error 

affecting substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014)). “To avoid 

forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 

2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” In 

re VanDalen, 293 Mich App 120, 135, 809 NW2d 412 (2011) (quotation marks and citations 

omitted). “Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the 

outcome of the proceedings.” In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008).

Claims of ineffective assistance of counsel are mixed questions of fact and law. In re 

Casto, 344 Mich App 590, 610; 2 NW3d 102 (2022). “We review for clear error a trial court’s 

factual findings, and questions of constitutional law are reviewed de novo.” Id. “Clear error exists 

if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” 

Id. (quotation marks and citation omitted). Where a party fails to preserve a claim of ineffective 

assistance of counsel, this Court’s “review is limited to mistakes apparent on the record.” In re 

LT, 342 Mich App 126, 133; 992 NW2d 903 (2022).

III. PROPER SERVICE

On appeal, respondent argues that reversal is required because she was not properly served

with the summons and notice of the termination hearing, at which she was not present. We agree.

It is undisputed that respondent was served with notice of the initial petition requesting the 

child’s removal. The trial court assumed jurisdiction over the child after respondent appeared and 
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a jury trial was held during the adjudicative phase. Thus, at issue in this appeal is whether the 

supplemental petition and summons for the termination hearing were served on respondent as 

required by statute. On appeal, respondent argues that the trial court lacked personal jurisdiction 

over her because she was not personally served with the summons and supplemental petition and 

the trial court failed to make a finding that personal service was impracticable before permitting 

alternate service. Respondent reasons that because there was no personal jurisdiction, the order 

terminating her parental rights was void.

“[P]arents have a significant interest in the companionship, care, custody, and management 

of their children.” In re Brock, 442 Mich 101, 109; 499 NW2d 752 (1993). This interest has been 

characterized as an element of “liberty” entitled to due-process protections. Id. Due process in 

civil cases generally requires notice of the nature of the proceedings and an opportunity to be heard 

in a meaningful time and manner. In re TK, 306 Mich App at 706. In a child protective proceeding, 

a parent of a child is entitled to personal service of the summons and notice of proceedings. In re 

SZ, 262 Mich App 560, 564; 686 NW2d 520 (2004). “[F]ailure to provide notice of a termination 

proceeding hearing by personal service as required by statute . . . is a jurisdictional defect that 

renders all proceedings in the trial court void.” In re Atkins, 237 Mich App 249, 250-251; 602

NW2d 594 (1999). However, if personal service is impracticable, a trial court may permit 

alternative service. See MCL 712A.13. When determining whether personal service would be 

impractical, the trial court must determine if reasonable efforts were made to locate the party. In 

re Adair, 191 Mich App 710, 714; 478 NW2d 667 (1991).

MCR 3.902 addresses service of process in juvenile proceedings. Subrule (G) states that 

“[a]fter a party’s first appearance before the court, subsequent notice of the proceedings shall be 

served on that party or, if the party has an attorney, on the attorney for the party as provided in 

subrule (D), except that a summons must be served for trial or termination hearing as provided in 

subrule (B).” (Emphasis added.) MCR 3.902(B)(4) states:

(a) Except as provided in subrule (B)(4)(b), a summons required under 

subrule (B)(2) must be served by delivering the summons to the party personally.

(b) If the court finds, on the basis of testimony or a motion and affidavit, 

that personal service of the summons is impracticable or cannot be achieved, the 

court may by ex parte order direct that it be served in any manner reasonably 

calculated to give notice of the proceedings and an opportunity to be heard, 

including publication.

MCL 712A.13 governs substitute service. In re SZ, 262 Mich App at 566. This statute 

states, in relevant part:

Service of summons may be made anywhere in the state personally by the 

delivery of true copies thereof to the persons summoned: Provided, [t]hat if the 

judge is satisfied that it is impracticable to serve personally such summons or the 

notice provided for in the preceding section, he may order service by registered 

mail addressed to their last known addresses, or by publication thereof, or both, as 

he may direct. [MCL 712A.13.]
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In this case, there is no evidence that respondent was personally served with the summons or that 

the court was properly presented with an appropriate motion for alternate service. Indeed, there is 

no evidence confirming that respondent was served with the summons and supplemental petition 

by any permissible manner.

Madrid testified during the termination hearing regarding respondent’s absence. When 

asked if respondent received the petition and summons for that day’s hearing, Madrid testified that 

she had and further explained that respondent stated that she received the summons and the petition 

but that she was not able to be there in person to meet the caseworker. Later, when asked if 

respondent and the child’s father were “properly notified about the hearing today,” Madrid replied, 

“yes they were.” However, Madrid did not testify that she understood what constituted proper 

service or clarify how respondent was actually “properly notified.”

Included in the lower court file is an “Affidavit of Efforts to Locate Absent Parent,” dated 

June 26, 2023, and signed by Madrid. In the affidavit, Madrid attested to efforts to locate and 

serve the summons on respondent. According to Madrid, she interviewed respondent’s mother 

and the child’s relative caregiver. Madrid also contacted the Lenawee County Friend of the Court, 

checked state and federal correctional systems, and attempted to have respondent served with the 

summons at respondent’s last known address. Madrid also called and texted respondent at her last 

known telephone number. Despite these efforts, Madrid, apparently was unable to locate 

respondent. Although there is an affidavit of efforts included in the lower court file, there is no 

corresponding ex parte motion requesting the court’s authorization to pursue alternate service. 

More importantly, there is no order permitting something other than personal service. Of note, 

after the filing of the affidavit to locate absent parent, two more proofs of service were filed with 

the trial court. Neither confirm service of process on respondent.

In sum, there is no evidence in the lower court record that respondent was personally served 

with the summons and the supplemental petition. Moreover, there is no evidence that alternate 

service was requested or granted. Indeed, it is difficult to conclude from the record how respondent 

was provided notice, if at all, of the July 6, 2023 termination hearing. Despite these obvious 

failings to serve respondent, the trial court nevertheless went forward with the termination hearing 

in respondent’s absence and, to further exacerbate the situation, allowed respondent’s counsel to 

withdraw from representation as a result of respondent’s failure to appear. Because respondent 

was not served in accordance with the requirements of MCL 712A.13 and the court rules, the trial 

court lacked jurisdiction to terminate her parental rights at the July 2023 termination hearing and, 

accordingly, plainly erred when it proceeded with the termination proceeding. In re Atkins, 237 

Mich App at 250-251.

IV. DUE PROCESS

Respondent also argues that the trial court violated respondent’s right to due process by 

allowing her attorney to withdraw at the start of the termination hearing and proceeding with the 

termination hearing in respondent’s absence after she had not been properly served with the 

summons for the hearing. We agree.

A parent has a right to a lawyer in child protective proceedings, including the right to 

appointed counsel. In re Williams, 286 Mich App 253, 275-276; 779 NW2d 286; MCR 
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3.915(B)(1). “An attorney who has entered an appearance may withdraw from the action or be 

substituted for only with the consent of the client or by leave of the court.” However, MCR 

3.915(B) places responsibility on the parents having counsel appointed for their benefit. In re 

Hall, 188 Mich App 217, 222; 469 NW2d 56 (1991). Moreover, the right to counsel may be 

waived or relinquished by a respondent’s conduct or inaction. Id., citing former MCR 

5.915(B)(1)(c).1

Nevertheless, the trial court must still ensure that a client’s rights and interests are protected 

when permitting an attorney to withdraw. “An attorney who represents a client cannot withdraw 

from a case in a manner which leaves his client without notice and without an adequate opportunity 

to seek other representation.” People v Bruinsma, 34 Mich App 167, 177; 191 NW2d 108 (1971).2 

Attorneys seeking to withdraw from representation must do so “with consent of the client or by 

leave of the court.” In re Withdrawal of Attorney, 234 Mich App 421, 431; 594 NW2d 514 (1999). 

In In re Withdrawal of Attorney, id., the Court considered Michigan Rule of Professional Conduct 

1.16(b) to determine whether an attorney should be permitted to withdraw as counsel. MRPC 

1.16(b) states that

a lawyer may withdraw from representing a client if withdrawal can be 

accomplished without material adverse effect on the interests of the client, or if:

* * *

(5) the representation will result in an unreasonable financial burden on the lawyer 

or has been rendered unreasonably difficult by the client . . . .

At the beginning of the hearing, respondent’s attorney asked the court to make a 

“preliminary motion,” stating that because respondent had not appeared for the hearing, “I don’t 

know how I can be effective counsel.” Thus, he asked “to be allowed to withdraw from this 

proceeding.” According to her attorney, he did not “know what [respondent’s] position is” thus 

he did not know “how [he] can be effective counsel.” Without further questioning from the court, 

respondent’s attorney was granted permission to withdraw. This was plain error. Putting aside 

the fact that respondent’s attorney apparently had not communicated with his client before the day 

of the hearing to understand what her “position” was, the simple fact that respondent failed to 

appear was insufficient to demonstrate that representation of her was “unreasonably difficult.” See 

MRPC 1.16(b)(5). Neither counsel nor the court reviewed the court file to determine whether 

 

1

In In re Hall, this Court addressed and applied former MCR 5.915, the predecessor to current 

MCR 3.915. The court rules governing child protective proceedings were formerly codified in 

supchapter 5.901 et seq. of the Michigan Court Rules. They were re-designated to subchapter 

3.901 et seq., effective May 1, 2003. Current MCR 3.915(B) is substantially similar to former 

MCR 5.915(B) 

2 Although cases decided by this Court before November 1, 1990, are not binding precedent, MCR 

7.215(J)(1), we may consider them as persuasive authority. In re Stillwell Trust, 299 Mich App 

289, 299 n 1; 829 NW2d 353 (2013).
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respondent had even been properly served and, therefore, required to attend. As the preceding 

section of this opinion sets forth, respondent was not.

The record establishes that respondent intended to contest the termination of her parental 

rights with the assistance of her trial counsel. Respondent attended and participated in the 

overwhelming majority of the court hearings. The record confirms that respondent was not 

properly served with the summons and supplemental petition indicating that the termination 

hearing would go forward on July 6, 2023. Under these circumstances, there is no indication that 

respondent’s absence at the July 6, 2023 termination hearing evidenced her intent to relinquish or 

waive her right to counsel and not present a defense to the supplemental petition seeking 

termination of her parental rights. See In re Hall, 188 Mich App at 222.

Moreover, respondent was clearly prejudiced by the trial court’s actions. At the preceding 

hearing, respondent’s counsel signaled an intent to present a defense that DHHS failed to make 

reasonable efforts to accommodate respondent’s alleged challenges in complying with services 

because of head injuries she sustained in a relatively recent motor vehicle accident. This did not 

occur because respondent’s trial counsel withdrew from the termination hearing. On the other 

hand, DHHS was able to present its case against respondent completely unchallenged. The trial 

court’s actions in proceeding with the termination hearing without informing respondent that she 

no longer had the assistance of her appointed counsel plainly violated respondent’s right to due 

process and seriously affected the fairness, integrity, or public reputation of the judicial 

proceedings. See In re Utrera, 281 Mich App at 9.

When an attorney seeks to withdraw from representation of a client, both the attorney and 

the court have an obligation that the client is reasonably informed and given an opportunity to 

obtain other counsel. See Bruinsma, 34 Mich App at 177. Moreover, the trial court may not permit 

the attorney to withdraw without first determining whether the attorney has good cause to do so. 

MRPC 1.16(b)(5). Neither of these requirements were satisfied here, and the trial court plainly 

erred when it permitted respondent’s attorney to withdraw.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Lastly, respondent argues that she was denied the effective assistance of counsel when her 

attorney withdrew his representation of her on the day of the termination hearing and without 

giving notice to her. We agree.

To establish ineffective assistance of counsel, “it must be shown that (1) counsel’s 

performance was deficient, falling below an objective standard of reasonableness, and that (2) the 

deficient performance prejudiced the respondent.” In re Martin, 316 Mich App 73, 85; 896 NW2d 

452 (2016). “The effective assistance of counsel is presumed, and a party claiming ineffective 

assistance bears a heavy burden of proving otherwise.” In re Casto, 344 Mich App at 612. “The 

Court cannot substitute its judgment for that of counsel’s on matters of litigation strategy, and 

counsel’s performance must be judged based on the knowledge, expertise, and information 

reasonably available when counsel formulated and implemented the litigation strategy.” Id. To 

establish prejudice, a party claiming ineffective assistance “must show that but for counsel’s 

deficient performance, a different result would have been reasonably probable.” Id. at 621.
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Respondent has demonstrated that her attorney’s legal representation of her fell below an 

objective standard of reasonableness and that she was prejudiced by counsel’s poor performance. 

Immediately after the opening of the hearing, respondent’s counsel informed the court that 

respondent was not present and that he wished to withdraw. There is no indication that counsel 

attempted to ascertain respondent’s location or that he investigated whether she was properly 

served with the summons and the supplemental petition. Seeking to withdraw without first 

engaging in the minimal effort to locate his client to notify them is conduct that falls below an 

objective standard of reasonableness. See In re Collier, 314 Mich App 558 n 5; 887 NW2d 431 

(2016) (“Practitioners in the field of child protective proceedings know well that some parents do 

not always show up for hearings.”). Moreover, because the court appointed respondent a lawyer, 

she was entitled to reasonably assume that she would be represented at any further proceedings 

despite her absence. Nonetheless, respondent’s lawyer left respondent without representation and 

without her knowledge and consent. 

Respondent was also prejudiced by the withdrawal of trial counsel. See id. (“In those 

instances [where a parent does not appear], assuming proper notice was given, a parent’s interests 

are protected by counsel.”). In this case, trial counsel’s actions left respondent’s interests 

unprotected. Trial counsel was not present to challenge the lack of proper service on respondent. 

Further, no substantive challenges were made to the supplemental petition. Respondent’s counsel 

indicated on the record that he could not be effective because, with respondent’s absence, he had 

no idea how she wished to proceed. This representation to the trial court is not well taken 

considering at the hearing that immediately preceded the termination hearing, counsel represented 

that respondent’s defense would include an argument that DHHS failed to accommodate 

respondent’s disabilities related to her medical issues. Trial counsel’s absence deprived 

respondent of the opportunity to provide this defense. Accordingly, respondent has overcome the 

presumption that she was provided the effective assistance of counsel and is entitled to a new 

hearing.

We vacate the trial court’s order terminating respondent’s parental rights and remand for 

further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Kirsten Frank Kelly 

/s/ Mark J. Cavanagh 

/s/ Michelle M. Rick