Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

June 23, 2009 

136988 

_________________________________________ 

In re SKYLER LEROY MCBRIDE, ALEXANDER 

GARAND MCBRIDE, and SAWYER DALE 

MCBRIDE, Minors. 

_________________________________________ 

DEPARTMENT OF HUMAN SERVICES, 

Petitioner-Appellee, 

v SC: 136988 

 COA: 282062 

Bay CC Family Division: 

RONALD D. MCBRIDE, JR., 06-009381-NA 

Respondent-Appellant, 

and 

SUSAN MCBRIDE, 

Respondent. 

_________________________________________/ 

 On order of the Court, the application for leave to appeal the July 15, 2008 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 CORRIGAN, J. (dissenting). 

I would reverse the order terminating the respondent father’s parental rights to his 

three sons. As the petitioner, Department of Human Services (DHS), concedes, 

respondent was unlawfully denied his right to counsel1

 and his right, as an incarcerated 

party, to participate by telephone in proceedings concerning his children.2

 Moreover, in 

light of these fundamental errors, the Michigan Attorney General (AG) and Solicitor 

General (SG) filed a brief amicus curiae3

 urging that reversal is required by Michigan 

 

1

 MCL 712A.17c; MCR 3.915(B)(1). 

2

 MCR 2.004. 
2

statutory law and court rules, as well as by federal constitutional law. I agree that a 

miscarriage of justice has occurred. I strenuously dissent from this Court’s decisions to 

countermand its previous order directing oral arguments4

 and to now deny leave to appeal 

altogether. 

I. Facts and Proceedings 

Respondent is the father of three sons who were 8, 10, and 13 years old, 

respectively, when these proceedings against their mother began in September 2006. 

Respondent has been incarcerated with the Department of Corrections (DOC) since 

2004.5

 His earliest possible release date from prison is June 30, 2015. Upon his 

incarceration, his sons remained in the care of his wife, and their mother, Susan McBride. 

Respondent maintained his relationship with his children, who also had relationships with 

respondent’s extended family; the family facilitated the children’s visits with respondent 

in prison. 

In September 2006 Susan was briefly jailed and the DHS sought temporary 

custody of the children. Susan was temporarily released from jail to attend the 

September 14, 2006, preliminary hearing, at which she was represented by courtappointed counsel. The children’s maternal grandmother offered to care for the children 

for the duration of Susan’s detention in jail, but the court determined that both Susan and 

her mother actively abused prescription drugs and were not fit to provide proper care. 

Accordingly, the children were placed in foster care. Respondent was notified of these 

events several days later. 

 

3

 The AG notes that the local prosecutor shall serve as the legal consultant to the DHS in 

child protective proceedings, MCL 712A.17(5), and the AG has supervisory authority 

over local prosecutors, MCL 14.30. The AG also has general duties to prosecute suits 

involving state departments, MCL 14.29, and, through the SG, to represent the state in 

this Court, MCL 14.28. But here the AG has elected to participate only as an amicus 

curiae as he takes a position adverse to that of the Bay County Prosecuting Attorney, who 

represents the DHS. 

4 In re McBride, 763 NW2d 633 (2009); In re McBride, 483 Mich 892 (2009). 

5

 Respondent was convicted of first- and second-degree criminal sexual conduct 

involving a minor. The victim was not one of respondent’s children. Significantly, no 

statute requires termination of a parent’s rights to his children merely on the basis of the 

nature of such convictions. MCL 712A.19b(3)(n)(i) permits termination if a parent 

commits certain offenses, including criminal sexual conduct, if the court also “determines 

that termination is in the child’s best interests because continuing the parent-child 

relationship with the parent would be harmful to the child[.]” The DHS did not seek 

termination under this section. 
3

On September 29, 2006, one day after her release from jail, Susan appeared at the 

adjudication hearing and admitted the allegations contained in the DHS’s neglect petition. 

She admitted her ongoing drug problem, that she had refused in-patient mental health 

treatment, and that she had inappropriately struck her 15-year-old son in the face. The 

court determined that Susan was presently not able to care for the children, but ordered 

substance abuse services, counseling, and visitation with the goal of ultimately returning 

them to her care. 

Although respondent had a right to communicate with the court by telephone in 

order to participate in the child protective proceedings, he was not informed of this right. 

He received notices concerning the hearings,6

 but the DHS and the court failed to comply 

with MCR 2.004(B) and (C), which require the DHS to move the court to arrange for 

telephonic communication with a respondent parent through the DOC. 

Respondent’s sister, Kelly McBride, did appear at the hearing. The record reflects 

that Kelly had regular contact with DHS workers between September 14 and 29 and had 

offered to care for the children in her home. The court rejected Kelly’s request for 

placement with her, stating that although she “appears to be suitable,” the court would not 

place the children with her because she lived more than an hour away from the children’s 

current community; the court and the DHS preferred for the children to live closer to their 

mother and to remain in their current schools. Kelly then asked the court to permit the 

children to continue to visit their father in prison. When the court opined that it would be 

inappropriate to require foster parents to transport them, Kelly offered that she and the 

children’s grandparents would drive them to the visits. The court denied her request with 

little further explanation.7

For almost a year, Susan attempted to comply with court orders and DHS services 

in order to regain custody of her children. But at the July 30, 2007, permanency planning 

hearing, the court concluded that she appeared unable to reform. She consistently 

 

6

 Before August 2007, none of the notices and orders sent to respondent suggested that 

his parental rights were at issue. Rather, each stated that the goal of the proceedings was 

to provide temporary foster care for the children while Susan participated in services 

aimed at reunifying her with them. 

7

 The court’s refusal to permit visitation may have violated MCL 712A.13a and MCR 

3.965. MCL 712A.13a(11) states that, until a petition for termination is filed, the court 

must permit “the juvenile’s parent to have frequent parenting time” unless visits, “even if 

supervised, may be harmful to the juvenile . . . .” MCR 3.965(C)(6)(a) similarly states: 

“Unless the court suspends parenting pursuant to MCL 712A.19b(4) [because a petition 

to terminate parental rights has been filed], . . . the court must permit each parent 

frequent parenting time . . . unless parenting time, even if supervised, may be harmful to 

the child.” 
4

relapsed into drug addiction, and the children remained withdrawn and reported feeling 

unsafe with her. Without addressing the children’s ages,8

 the court changed the goal of 

the proceedings to adoption instead of reunification with Susan. But it gave Susan 30 

more days in which to try to prove that she could change her ways. 

On August 27, 2007, the DHS petitioned for termination of Susan’s and 

respondent’s parental rights under MCL 712A.19b(3)(g), which permits termination 

 

8

 A child’s age affects whether he is likely to be adopted after his parents’ rights are 

terminated. As of the November 7, 2007, date of termination in this case, respondent’s 

sons were 9, 11, and 15 years old. Of the total adoptions in Michigan reported from 

October 1, 2006, to September 30, 2007, children aged nine and older comprised less 

than one-third of those adopted (31.48%). State of Michigan Department of Human 

Services, [Adoption and Foster Care Analysis and Reporting System] Adoptions by 

Federal Age Groups, October 01, 2006 - September 30, 2007, 

<http://www.michigan.gov/documents/dhs/AdoptionsByFederalAgeGroupsFY07_243181_7.pdf> (accessed June 8, 2009). Yet older children represent a higher 

percentage of those waiting to be adopted after their parents’ rights have been terminated. 

For example, a DHS report states that, as of September 30, 2008, there was a “backlog” 

of 4,396 children who remained in foster care although their parents’ rights had been 

terminated before January 1, 2008; of these children, 716 were 5 years old or younger, 

925 were 6 to 11 years old, and 2,655 were 12 or older. Michigan Department of Human 

Services, Recent Developments in Child Welfare, May 4, 2009 (presentation to the State 

Court Administrative Office), pp 63-64, 66 

<http://courts.michigan.gov/scao/services/cws/Materials/05-04-09-RDCWL.3.LL.pdf> 

(accessed June 8, 2009). Nationwide statistics similarly show that, in the fiscal year 

ending September 30, 2006, 56% of the total number of children in foster care (which 

includes temporary wards of the state and children awaiting adoption) were aged nine and 

older, but this age group comprised only 28% of total adoptions. The AFCARS Report, 

Preliminary FY 2006 Estimates as of January 2008, 

<http://www.acf.hhs.gov/programs/cb/stats_research/afcars/tar/report14.htm> (accessed 

June 8, 2009). The relative likelihood that an older child will actually be adopted is 

significant because it bears on the child’s best interests. Even when statutory grounds for 

termination are present, under the former version of MCL 712A.19b(5) applicable here a 

court could terminate a parent’s rights “unless . . . termination . . . [was] clearly not in the 

child’s best interests.” See In re Trejo Minors, 462 Mich 341, 352-353, 356 (2000) 

(MCL 712A.19b[5] “preserves to the court the opportunity to find that termination is 

‘clearly not in the child’s best interests’ despite the establishment of one or more grounds 

for termination”; the court may “consider evidence, within the whole record, that 

termination is clearly not in a child’s best interests.”). If adoption is unlikely, a child’s 

best interests may be better served by continuing his relationships with his parents and 

extended family, particularly when the extended family is willing to take custody of him 

until the child reaches the age of majority. 
5

when the “parent, without regard to intent, fails to provide proper care or custody for the 

child and there is no reasonable expectation that the parent will be able to provide proper 

care and custody within a reasonable time considering the child’s age.” The petition also 

sought termination of respondent’s rights under MCL 712A.19b(3)(h), which applies 

when the 

parent is imprisoned for such a period that the child will be deprived of a 

normal home for a period exceeding 2 years, and the parent has not provided 

for the child’s proper care and custody, and there is no reasonable 

expectation that the parent will be able to provide proper care and custody 

within a reasonable time considering the child’s age. 

On September 18, 2007, respondent was personally served with a copy of the petition and 

with notice that the termination hearing would take place a few weeks later, on October 

10, 2007. 

At the termination hearing, for the first time the DHS and the court arranged for 

respondent to participate by telephone.9

 He immediately invoked his right to counsel, but 

the court denied his request.10 He did not question his wife or the DHS workers who 

testified during the hearing, but testified by telephone on his own behalf, stating in part: 

“I love my children and I do not want to lose them. And I would love to hopefully have 

some sort of visiting rights and so would my parents and my other family members.” He 

noted that the children had visited him before they were placed in foster care. 

On November 7, 2007, the court issued an opinion and order terminating both 

parents’ rights to their sons. Susan and respondent separately appealed, and the Court of 

Appeals affirmed in a split, unpublished opinion.11 Dissenting Judge Gleicher would 

 

9

 The court advised respondent that “the only reason we’ve got you here by telephone 

today is because the prosecutor’s secretary thought that you should be present and set it 

up.” 

10 As the Court of Appeals would later recognize, the trial court erred when it concluded 

that respondent waived his right to counsel by failing to assert the right earlier in the 

proceedings. A court is obligated to inform a respondent parent of his right to counsel—

and to appoint counsel if necessary—“at the respondent’s first court appearance . . . .” 

MCL 712A.17c(4) and (5) (emphasis added); see also MCR 3.915(B)(1)(a). Therefore, 

as the Court of Appeals majority concluded, “[t]o hold that a respondent waives his right 

to counsel by failing to request a court-appointed attorney before his first court 

appearance is inconsistent with the plain language of MCL 712A.17c(4) and MCR 

3.915(B)(1)(a).” In re McBride, unpublished opinion per curiam of the Court of Appeals, 

issued July 15, 2008 (Docket Nos. 282062 and 282243), at 3 (In re McBride I). 

11 In re McBride I, supra at 1. 
6

have reversed the order terminating respondent’s parental rights. She opined that the 

DHS’s and the court’s failures to comply with MCR 2.004 and the complete denial of 

counsel required reversal because respondent’s procedural and substantive due process 

rights were violated and, therefore, the court’s resulting order “lack[ed] any inherent 

integrity . . . .” In re McBride, unpublished opinion per curiam of the Court of Appeals, 

issued July 15, 2008 (Docket No. 282062 and 282243), at 11 (Gleicher, J., dissenting) (In 

re McBride I). 

II. Discussion 

I agree with Judge Gleicher, respondent, the AG, and respondent’s numerous other 

amici curiae that reversal is required. Indeed, reversal is mandated by MCR 2.004(F). 

Accordingly, although I am also persuaded by respondent’s arguments—which are 

consistent with Judge Gleicher’s dissent and the AG’s position—that his due process 

rights were violated, we need not even reach the constitutional question.12 Further, 

although MCR 2.004(F) appears to require automatic reversal (as would the apparent 

constitutional violations),13 without regard to whether respondent can show that the errors 

 

12 In the words of my concurring colleagues in In re Rood, 483 Mich 73 (2009)—in 

which my lead opinion addressed the constitutional implications of errors committed by 

the trial court and the DHS in a termination proceeding—here I am content to squarely 

conclude that the “numerous statutory and court rule violations” are “sufficiently 

egregious to require appellate relief.” Id. at 130-131 (Young, J., concurring in part); see 

also id. at 125 (Cavanagh, J., concurring in part) ( “[T]he alleged due process violations 

arise out of the same state actions that resulted in statutory violations,” and reversal is 

“clearly compelled by the statutes and court rules . . . .”); id. at 125 (Weaver, J., 

concurring in part) (reversal is required “both substantively and procedurally on the basis 

of Michigan law”). 

13 The termination order foreclosed respondent’s rights to have any contact with his sons 

and to contribute to their upbringing. It thereby permanently extinguished his 

constitutionally protected “fundamental liberty interest . . . in the care, custody, and 

management” of his children. Santosky v Kramer, 455 US 745, 753 (1982). The state 

must provide “parents with fundamentally fair procedures” in proceedings involving their 

fundamental parental rights. Id. at 754. Yet here, because of the violation of MCR 2.004 

and the improper denial of his request for counsel, respondent was deprived of the most 

basic procedural protections available under Michigan law to a parent in his 

circumstances. Accordingly, I am persuaded by Judge Gleicher’s conclusion that the 

“‘commanding’ liberty interests at stake here, in conjunction with the statutory and court 

rule mandates for appointed counsel, are entirely stripped of meaning if this Court 

employs a harmless error analysis.” In re McBride I, supra at 8 (Gleicher, J., dissenting), 

quoting and citing Lassiter v Dep’t of Social Services of Durham Co, 452 US 18, 27 

(1981) (“A parent’s interest in the accuracy and justice of the decision to terminate his or 

her parental status is . . . a commanding one.”). Further, although respondent 
7

affected the outcome of the proceedings, respondent convincingly argues that the errors 

indeed substantially contributed to the court’s decision and therefore were not harmless. 

A. The parties concede that respondent’s rights under MCR 2.004 were violated 

MCR 2.004 requires the court and the petitioning party to arrange for telephonic 

communication with incarcerated parents whose children are the subject of child 

protective proceedings or termination petitions.14 Significantly, the express purpose of 

 

convincingly argues that the outcome of the case would have been different if he had 

participated in the proceedings or had been represented by counsel, in many cases errors 

such as those present here will effectively prevent a respondent from ever showing that 

his lack of participation and representation affected the outcome; because no one will 

have developed a record in support of his interests, it may be difficult if not impossible 

for him to provide an offer of proof to support his claim that the proceedings might have 

ended differently. It just so happens in this case that respondent’s sister consistently 

advocated for ongoing relationships among the children, their father, and their paternal 

family and, therefore, the pretermination record contains proof that respondent had an 

ongoing relationship with his children and that he could potentially provide for their care 

and custody through his family, as I discuss further infra. On this point, I also note my 

disagreement with the conclusion of the Court of Appeals that the complete denial of a 

parent’s statutory right to counsel may be harmless under these circumstances. In re 

McBride I, supra at 3. The majority in that case cited In re Powers Minors, 244 Mich 

App 111, 123 (2000), and In re Hall, 188 Mich App 217, 222-223 (1991), but neither of 

those cases involved the total deprivation of counsel or lack of counsel at a termination 

hearing. Indeed, the court in In re Hall reasoned that, even if the respondent mother had 

not waived her right to counsel during several review hearings, her attorney’s absence 

from those hearings was harmless in part because she was represented by counsel at the 

termination hearing. In re Hall, supra at 222-223. As the DHS concedes, no Michigan 

case has held harmless a total deprivation of counsel, including at the termination 

hearing. 

14 MCR 2.004(A) to (C) provide: 

(A) This rule applies to 

(1) domestic relations actions involving minor children, and 

(2) other actions involving the custody, guardianship, neglect, or foster-care 

placement of minor children, or the termination of parental rights, 

in which a party is incarcerated under the jurisdiction of the Department of 

Corrections. 

(B) The party seeking an order regarding a minor child shall 
8

the rule is to engage the incarcerated party by telephone at the outset of the proceeding to 

determine 

(1) whether the incarcerated party has received adequate notice of 

the proceedings and has had an opportunity to respond and to participate, 

(2) whether counsel is necessary in matters allowing for the 

appointment of counsel to assure that the incarcerated party’s access to the 

court is protected, 

(3) whether the incarcerated party is capable of self-representation, if 

that is the party’s choice, 

(4) how the incarcerated party can communicate with the court or the 

friend of the court during the pendency of the action, and whether the party 

needs special assistance for such communication, including participation in 

additional telephone calls, and 

(5) the scheduling and nature of future proceedings, to the extent 

practicable, and the manner in which the incarcerated party may participate. 

[MCR 2.004(E) (emphasis added).] 

 

(1) contact the department to confirm the incarceration and the incarcerated 

party’s prison number and location; 

(2) serve the incarcerated person with the petition or motion seeking an order 

regarding the minor child, and file proof with the court that the papers were 

served; and 

(3) file with the court the petition or motion seeking an order regarding the 

minor child, stating that a party is incarcerated and providing the party’s 

prison number and location; the caption of the petition or motion shall state 

that a telephonic hearing is required by this rule. 

(C) When all the requirements of subrule (B) have been accomplished to the 

court’s satisfaction, the court shall issue an order requesting the department, 

or the facility where the party is located if it is not a department facility, to 

allow that party to participate with the court or its designee by way of a 

noncollect and unmonitored telephone call in a hearing or conference, 

including a friend of the court adjudicative hearing or meeting. The order 

shall include the date and time for the hearing, and the prisoner’s name and 

prison identification number, and shall be served by the court upon the 

parties and the warden or supervisor of the facility where the incarcerated 

party resides. 
9

The AG observes that the enumerated purposes of the rule are consistent with traditional 

due process concepts of notice and opportunity to be heard.15 

B. The remedy for violation of MCR 2.004 is reversal 

With regard to a remedy for violation of MCR 2.004, MCR 2.004(F) explicitly 

provides: “A court may not grant the relief requested by the moving party concerning the 

minor child if the incarcerated party has not been offered the opportunity to participate 

in the proceedings, as described in this rule.”16 (Emphasis added.) I agree with 

respondent and the AG that the plain language of subrule F, combined with the rule’s 

overall purposes, defies typical harmless error review. MCR 2.004(F) affirmatively 

prohibits the trial court from taking action when the rule has been violated. And the rule 

would be effectively meaningless if its enforcement depended on an imprisoned parent’s 

ability to show, in hindsight, that his participation would have affected the outcome of the 

proceeding. Such a requirement would rewrite the rule to require parental participation 

only upon proof that the parent likely could achieve an outcome in his favor; such a 

notion negates a parent’s right to participate in proceedings involving his children and 

turns due process on its ear. 

MCR 2.004(F) clearly requires reversal here. Neither the DHS nor the court ever 

fulfilled its respective duty to arrange for respondent’s participation. And because 

respondent did not have an attorney to represent him, no one familiar with the law 

appeared on his behalf to ensure that the rule was enforced. The enumerated purposes of 

the rule were never fulfilled and, as a result, respondent was totally deprived of the ability 

 

15 See Dow v Michigan, 396 Mich 192, 205 (1976) (“The fundamental requisite of due 

process of law is the opportunity to be heard. The hearing must be at a meaningful time 

and in a meaningful manner. The opportunity to be heard includes the right to notice of 

that opportunity.”) (quotation marks and citations omitted). 

16 MCR 2.004(F) does not apply, even if the court or petitioning party failed to comply 

with a provision of MCR 2.004, under two circumstances: “if the incarcerated party 

actually does participate in a telephone call, or if the court determines that immediate 

action is necessary on a temporary basis to protect the minor child.” The latter exception 

arguably applied to the September 14, 2006, preliminary hearing because Susan had been 

jailed and the children were staying with their maternal grandmother, who the court 

concluded was not an appropriate custodian. Otherwise, the DHS generally concedes that 

MCR 2.004 was violated, and it does not argue that respondent’s belated participation by 

telephone at the termination hearing was sufficient to satisfy the first exception to MCR 

2.004(F). Indeed, by the time the termination hearing took place, the proceedings were 

effectively over; respondent’s unrepresented telephonic participation at that time did not 

satisfy any of the purposes of the rule. 
10

to participate in the proceedings.17 Accordingly, the court was prohibited from granting 

the DHS’s petition for termination. I would reverse on the basis of MCR 2.004(F) alone. 

C. The errors were not harmless 

 Finally, even if it were incumbent upon respondent to show that violation of MCR 

2.004 actually affected the outcome of the proceedings, he persuasively argues that the 

error was not harmless. First, the error clearly qualifies for reversal under MCR 

2.613(A), the harmless error rule. MCR 2.613(A), which generally applies to civil 

proceedings—including child protective proceedings, see MCR 3.902(A)—provides: 

An error in the admission or the exclusion of evidence, an error in a 

ruling or order, or an error or defect in anything done or omitted by the 

court or by the parties is not ground for granting a new trial, for setting 

aside a verdict, or for vacating, modifying, or otherwise disturbing a 

judgment or order, unless refusal to take this action appears to the court 

inconsistent with substantial justice. 

 

17 Respondent also reasonably observes that, although termination of his parental rights 

was not initially at issue, his lack of opportunity to participate from the outset of the 

proceedings directly affected his constitutionally protected fundamental right as a parent 

to participate in decisions concerning his children’s care and custody. Santosky, supra at 

753. His lack of opportunity to participate also had broader ramifications for child 

welfare in Michigan. For example, Michigan is at risk of losing significant federal 

funding under subchapter IV, part E, of the United States Social Security Act, 42 USC 

670 et seq.—commonly called “Title IV-E” funding—as a result of failures to involve 

both parents in a child’s case planning process throughout the proceedings. Indeed, to 

avoid funding losses after the United States Department of Health and Human Services 

Child and Family Services review (CFSR) and Title IV-E review of Michigan court and 

DHS procedures, in 2004 the DHS established a Program Improvement Plan—or 

“PIP”—aimed at remedying our state’s failures to engage fathers and seek out relatives in 

child protective proceedings. PIP General Information, pp 26, 28, 32 

<http://www.michigan.gov/documents/FIA-CFS-PIP-Narrative_106409_7.pdf> 

(accessed June 8, 2009) (CFSR review revealed failures “to conduct a thorough search or 

evaluation of relatives as potential placement resources or relatives had requested to be 

considered for placement and the agency failed to follow up,” “[p]articular concern was 

expressed over the lack of consistent efforts to locate and involve fathers,” and “[f]athers 

were not engaged in the case planning process even when their whereabouts were 

known.”). See also national expert Judge Leonard Edwards (retired) on the 

consequences, including funding losses, of states’ failures to engage fathers in child 

protective proceedings. Edwards, Engaging Fathers in the Child Protection Process: 

The Judicial Role (Part 1), in American Bar Association: Child Law Practice, vol 28, no 

1, pp 1, 6-10 (March 2009). 
11

The court’s decision to terminate respondent’s constitutional parental rights after 

depriving him of the most basic procedural protections throughout the proceedings was 

certainly “inconsistent with substantial justice.” Second, respondent has shown that his 

substantial rights were affected and that, absent the errors, the outcome of the 

proceedings likely would have been different.18 

Respondent cites the DHS’s statutory duties in child protective proceedings to 

“identify, locate, and consult with relatives to determine placement with a fit and 

appropriate relative who would meet the child’s developmental, emotional, and physical 

needs as an alternative to foster care,” to subsequently “[m]ake a placement decision and 

document in writing the reason for the decision,” and to “[p]rovide written notice of the 

decision and the reasons for the placement decision” to those involved including the 

“father” and “each relative who expresses an interest in caring for the child . . . .” MCL 

722.954a(2).19 Respondent makes a strong argument that placement with a paternal 

18 Respondent reasonably argues that the errors were of constitutional dimension and 

were preserved because he properly requested counsel—who could have moved inter alia 

for relief based on the ongoing violation MCR 2.004—at the termination hearing. 

Accordingly, he argues that the error must be reviewed for whether it was harmless 

beyond a reasonable doubt. People v Carines, 460 Mich 750, 774 (1999). But even if we 

assume that the violation of MCR 2.004 constituted a nonconstitutional error, respondent 

has shown that the error “more probabl[y] than not” affected the outcome. Id., citing 

People v Lukity, 460 Mich 484 (1999). Indeed, even under the plain error standard for 

unpreserved errors, I am convinced that the violation of MCR 2.004 affected his 

substantial rights and “seriously affected the fairness, integrity, or public reputation of 

judicial proceedings.” Carines, supra at 774. 

19 Michigan and federal law favor placement with relatives throughout child protective 

proceedings. MCL 712A.13a(10) (“[T]he court shall order the juvenile placed in the 

most family-like setting available consistent with the juvenile’s needs.”); MCR 3.965(E) 

(providing that at the preliminary hearing, the court “shall direct” the DHS to identify and 

consult with relatives pursuant to MCL 722.954a[2]); MCR 3.965(B)(13) (“The court 

must inquire of the parent . . . regarding the identity of relatives of the child who might be 

available to provide care.”); 42 USC 671(19) (providing that states receiving funding 

under subchapter IV, part E, of the United States Social Security Act, 42 USC 670 et 

seq., must “consider giving preference to an adult relative over a non-related caregiver 

when determining a placement for a child, provided that the relative caregiver meets all 

relevant State child protection standards[.]”). Indeed, after this case was decided the 

Legislature enacted new statutes aimed at encouraging and funding guardianships, 

including those by relatives. See, e.g., MCL 712A.19a(7) through (15). In particular, a 

parent may now explicitly avoid termination of his rights, although statutory grounds for 

termination are present, if the child is being cared for by relatives or if adoption is not an 

appropriate permanency goal. MCL 712A.19a(6)(a) and (b)(i). 
12

relative—particularly his sister, Kelly—would have been very likely if the correct 

procedures had been followed. Indeed, the trial court clearly erred when it stated, in its 

November 7, 2007, opinion, that “[f]amily members were unwilling to step in after the 

mother’s long period of addiction.” To the contrary, Kelly requested custody, was in 

contact with the DHS and the court throughout the proceedings, and indeed appeared at 

the termination hearing along with respondent’s mother. Nothing in the record suggests 

that the court or the DHS considered placement with Kelly or other paternal relatives 

after the court determined that reunification with Susan was inappropriate. 

Further, the DHS and the Court of Appeals majority incorrectly assumed that 

termination was inevitable under MCL 712A.19b(3)(h). That statute does not 

automatically authorize termination merely because a parent will be imprisoned for more 

than two years. Rather, the statute permits termination if the 

parent is imprisoned for such a period that the child will be deprived of a 

normal home for a period exceeding 2 years, and the parent has not provided 

for the child’s proper care and custody, and there is no reasonable 

expectation that the parent will be able to provide proper care and custody 

within a reasonable time considering the child’s age. [MCL 712A.19b(3)(h) 

(emphasis added).] 

The statute’s use of the word “and” clearly permits a parent to provide for the child’s 

proper care and custody although he is in prison; he need not personally care for the 

children.20 Thus, respondent reasonably argues that the facts underlying the DHS’s

 

20 Michigan precedent supports the notion that a parent may achieve proper care and 

custody through placement with a relative. In re Taurus F, 415 Mich 512, 535 (1982) 

(Williams, J.) (equally divided opinion) (“[I]f a mother gives custody to a sister, that can 

be ‘proper custody’”.); In re Weldon, 397 Mich 225, 296 (1976) (Levin, J.) (“Some 

parents, . . . because of illness, incarceration, employment or other reason, entrust the 

care of their children for extended periods of time to others. This they may do without 

interference by the state as long as the child is adequately cared for.”), overruled in part 

Bowie v Arder, 441 Mich 23, 43 (1992); In re Curry, 113 Mich App 821, 823-826 (1982) 

(incarcerated parents may achieve proper custody by placing a child with relatives); In re 

Ward, 104 Mich App 354, 360 (1981) (holding that a child “who was placed by her 

natural mother in the custody of a relative who properly cared for her, is not a minor 

‘otherwise without proper custody or guardianship’ and thus she was not subject to the 

jurisdiction of the probate court” under MCL 712A.2). Michigan’s Estates and Protected 

Individuals Code includes an extensive statutory scheme designed to establish guardians 

for minors—including guardians who are relatives—by appointment of the court or by 

appointment of the minor’s parents. MCL 700.5201 et seq. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

June 23, 2009 

0616 

 

13

termination petition against him would have been negated—or would not have arisen in 

the first place—if respondent had participated earlier in the proceedings or had been 

represented by counsel; he or his attorney could have argued for placement with Kelly or 

another paternal relative. If such a placement had succeeded, termination would have 

been inappropriate, and respondent and his children would have been able to continue 

their relationship. 

III. Conclusion 

 For each of these reasons, I would reverse the order terminating respondent’s 

parental rights and remand for further proceedings in the trial court. I would direct the 

trial court to appoint counsel for respondent and to fully consider placement with 

relatives and guardianship options, particularly with Kelly McBride. 

 KELLY, C.J., joins the statement of CORRIGAN, J.