In re FERRANTI, Minor Docket No. 157907. Argued on application for leave to appeal O ctober 10, 2018. Decided June 12, 2019. The Department of Health and Human Services (the Department) p etitioned 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 developmen t 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 medi cal appointments and by failing to regularly refill her prescription medications. The Departme nt also alleged that the living conditions in respondents’ home posed a health risk to JF becau se it was cluttered, dirty, and had a strong odor of animals and urin e. The court held an emergenc y hearing and placed JF in foster care, but the court permitted her to have unsupervised visits a t respondents’ home. After several more hearings, the trial court found probable cause to authoriz e the petition and set an adjudication trial. At a preadjudication st atus conference, respondents adm itted that they had not refilled several of JF’s prescriptions, and the c ourt exercised jurisdiction ove r JF. In taking re spondents’ 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 o ther things, required that respondents maintain a clean home. The court concluded the fin al dispositional hearing in October 2016 by authorizing the Department to file a termination petiti on, but the court noted that its decision was limited to that procedural step. The parties disp uted 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, S HAPIRO , P.J., and M. J. K ELLY and O’B RIEN , JJ., affirmed the t rial court’s termina tion decision in an un published per cu riam opinion issued on May 10, 2018 (Docket Nos. 340117 and 340118), conclud ing that In re Hatcher , 443 Mich 426 (1993), proh ibited it from considering respondents’ cl aim that the trial court violated their due-process rights by failing to advise them of the conse quences of their pleas. The panel also held that any error from the court’s visit to the family h ome did not violate respondents’ dueprocess rights and that respondents waived the claim that the c ourt’s in camera interview was Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. Loomiserroneous. Respondents applied for leave to appeal in the Supr eme 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 M C C ORMACK , joined by Justices V IVIANO , B ERNSTEIN , and C LEMENT , the Supreme Court, in lie u of granting leave to appeal, held : In re Hatcher , 443 Mich 426 (1993), which gener ally barred a parent from rai sing 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 appe al of an adjudication error in an appeal from an order terminating parental rights is not a colla teral 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. The refore, the collateral-bar rule does not apply within one child protective case. Also, the use of u nrecorded, in camera interviews of children in termination-of-paren tal-rights proceedings violates parents’ due-process rights. 1. Under MCR 3.961(A), a proceeding to terminate parental rig hts 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 wheth er the court may exercise jurisdiction over the child. If the court authorizes the petit ion, the adjudicative phase begins, in which the court determines whether it may exercise jurisdiction over the child and the respondentsparents under MCL 712A.2(b) so that it can enter dispositional orders. Once the court’s jurisdiction is established, the case moves to the dispositiona l phase, in which the court holds review hearings to determine whether the petition should be dis missed 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 protectiv e 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 o f jurisdiction cannot be collat erally attacked in a second proceeding—to what is a single, continual proceeding. The “col lateral bar” rule generally prohibits a litigant from indire ctly attacking a prior judgment in a later, separate action, unless the court that issued the prior judgment lacked jurisdiction over t he 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 t he child protective proceedin g (in an appeal from an order terminating parental rights) is “collaterally” attacking that v ery same child protective proceeding. But that holding failed to recognize that a child protective pr oceeding is a single, continual proceeding that begins with a petition, proceeds to an adjudica tion, and—unless the family has been reunified—ends with a determination of whether a responden t’s parental rights will be terminated. Therefore, Hatcher was wrongly decided. 2. That a case was wrongly decided, by itself, does not neces sarily mean that overruling it is appropriate. Courts should review whether the decision defi es practical workability, whether reliance interests would work an undue hardship were the decisi on 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 sim ple application, especially when a respondent’s due-process rights were violated in the adj udication. Hatcher disrupted the careful balancing of interests in the juvenile code by preventi ng judicial review of meritorious claims of defects in the adjudication; a parent’s only remedy u nder Hatcher was by way of aninterlocutory appeal, which disi ncentivized a parent from timel y cooperating with the Department and further delayed a final determination. With regard to reli ance interests, Hatcher had scant application; it merely imposed procedural limitations on a resp ondent’s ability to challenge errors in the adjudication. Therefore, overruling Hatcher simply causes readjustments in litigation as opposed to practical, real-world d islocations. Finally, when c onsidering 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 overrul ing it. Accordingly, Hatcher was overruled. 3. Parents have a fundamental right to direct the care, custo dy, 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 k nowing. MCR 3.971(B)(3) and (4) require the trial court to advise a respondent on the recor d or in a writing that is made a part of the file of the allegations in the petition, the right to an at torney, the rights the respondent will be waiving by entering a plea, the c onsequences of that plea (incl uding 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 postterminati on support obligations. Responde nts argued that adjudication errors raised after the trial court has terminated parental rights sho uld be reviewed for plain error. Under that standard, respondents must e stablish that (1) error occurr ed; (2) the error was “plain,” i.e., clear or obvious; and (3) the pl ain error affected their substa ntial 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 respon dents’ claim of adjudication error, and the Department acknowledged that the first and second prong s 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 t o direct the care, custody, and control of JF affected the very framework within which responde nts’ case proceeded; therefore, the error affected respondents’ substantial rights. Finally, t he error seriously affected the fairness, integrity, or public reputation of judicial proceedings because the trial court did not advise respondents that they were waivi ng any of the rig hts identified in MCR 3.971(B)(3) and failed to advise the respondents of the con sequences of entering their pl eas as required by MCR 3.971(B)(4). The trial court’s o rder 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 fir st impression in Michigan. In this case, respondents’ agreement to the general idea of the court s peaking to JF did not waive their right to have that interview co mport with due process. Respond ents endorsed on ly the court’s initial proposal that the court wished to speak with JF, but th e court never sought—and respondents never gave—their agreement about how that conversation would ta ke place. There was nothing in the juvenile code, caselaw, court rules, or otherwise that p ermitted 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 correctl y held that the use of unrecorded, in
camera interviews in termination proceed ings violates parents’ due-pr ocess rights. On remand, a different judge must preside.Trial court order terminating re spondents’ parental rights vac ated; trial court order of adjudication vacated; case remanded to the trial court for furt her proceedings with a different judge presiding on remand.
Justice M ARKMAN , joined by Justice Z AHRA , dissenting, would not have overruled Hatcher because it was correctly decided and no sound reason to alter i ts common-law rule was presented. Justice M ARKMAN would have affirmed the judgment of the Court of Appeals becau se the Court of Appeals correctly held that r espondents cannot collaterally attack the instant adjudication after their parental rights have been terminated, that respondents wa ived 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 aft er the trial court had termina ted their parental r ights, nearly two years after the adjudication. A n adjudication cannot be collat erally 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, res pondents were barred from coll aterally attacking the adjudication. The majority was incorrect in fa iling to recognize that althoug h there is only one final order in a child protective case, there are at least two orders that are a ppealable by right, i.e., the initial dispositional order and the orde r terminating parental rights. The time to directly attack the adjudication is following the order of disposition placing a mi nor under supervisi on of the court. Black’s Law Dictionary (6th ed) defines “collateral attack” as “[a]n attack on a judg ment in any manner other than by action or p roceeding, whose very purpose i s to impeach or overturn the judgment; or, stated affirmatively, a collateral attack on a ju dgment 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 indepen dent purpose other than overturning the adjudication—to at tack the termination. Theref ore, attacking the adjudication in the appeal of the termination order constitutes a collateral—ra ther 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 a lteration of Hatcher ’s common-law rule. Contrary to the majority ’s assertion, numerous “exceptio ns” to the Hatcher rule have not been carved out. Furthermore, the court rules were recently amended to essentia lly incorporate Hatcher ; specifically, the court rules now require the trial court to ad vise parents that they have an appeal of right from the initial dispos itional order and that if they do not challenge the adjudication at that point, they will not be able to challenge it after their parent al rights have been terminated, with two exceptions. Given that th is Court just incorporated Hatcher into its court rules, Justice M ARKMAN was not sure why the majority fel t compelled to overrule it in its opinion. In addition, Justice M ARKMAN would not overrule Hatcher because finality is critical with regard to child protective proceedings. Allowing a “do-over” is not fair to th e children who will be required to endure this process again—or to prospective adoptive parents—an d it further results in wasted time, money, and resources as well as disrupts whatever progres s 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 fres h start for the abused or neglected child, so too did the prior cour t rules. It is not right that JF alone should be made subject to a thirdcourt rule regime, which does not reasonably balance the intere sts of parent and child and requires a lengthy re-do of an already lengthy and fair legal process on ly because of the failure of respondents—already deemed by a court of law to have acted negl ectfully—to have abided by the law in pursuing a timely appeal. Thus, in a realm of the law i n which reasonable expedition of decision-making has always been t hought by the judiciary to be paramount, the majority imposes in this single case a process that is reflective of our legal s ystem at its most unnecessarily drawn out and dilatory.
Justice C AVANAGH did not participate in the disposition of this case because th e Court considered it before she assumed office.

©2019 State of MichiganFILED June 12, 2019

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

In re FERRANTI, Minor.
No. 157907

BEFORE THE ENTIRE BENCH (except C AVANAGH , J.)

M C C ORMACK , C.J. This Court’s decision in In re Hatcher , 443 Mich 426; 505 NW2d 834 (1993), generally bars a parent from raising errors from the adjudicati ve 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 procee ding is two separate actions: the adjudication and th e disposition. With that proce dural (mis)understanding, we held that a posttermination appeal of a defect in the adjudicat ive phase is prohibited because it is a collateral att ack. This foundational assumptio n was wrong; Hatcher was wrongly decided, and we overrule it. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 The Hatcher rule prevented these respondent s-parents from challenging the undisputed defects in their pleas—the pleas that supported the trial court’s exercise of dispositional authority and the te rmination of the respondents’ parental rights. We reverse the Court of Appeals, vacate the trial court’s order of adjudic ation and order terminating the respondents’ parental rights, and remand this case to the t rial court for further proceedings. And because the t rial court violated the responde nts’ due-process rights by conducting an unrecorded, in camera interview of the subject child before the court’s resolution of the termination pe tition, a different judge must preside on remand.
I. FACTUAL AND PROC EDURAL HISTORY The respondents have several chil dren together. Their youngest , a daughter, JF, was born in 2003. JF has spina bifi da, a birth defect relating to the gestational development of the spinal cord. As a result of her spina bifida, JF has troub le ambulating without the aid of a mobility device. Also related to spina bifida, JF has neu rogenic bladder, and she must use a catheter to urinate. JF ha s required medical care and su pervision for her entire life. In October 2015, the petitioner, th e Department of Health and H uman Services (the Department), petitioned to remove J F from the respondents’ care . The Department alleged that the respondents had faile d to adequately attend to JF’s me dical needs by missing several medical appointments a nd failing to regularly refill he r prescription medications. The Department also alleged that the living conditions in the r espondents’ home posed a health risk to JF. The petition described the respondents’ hom e as having “clutter throughout,” making it difficult to maneuver in a wheelchair. The petition also described JF’s bathroom as “filthy” and t he home as having “a strong odor of animals and urine.”3 The court held an emergency he aring on the petition and placed JF in foster care, but the court permitted her to hav e 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 conf erence in December 2015, the re spondents admitted that JF had been prescribed me dications for her health conditio n, 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 tr ial court to exercise jurisdiction over JF. The respon dents 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 conse quences of their pleas, as required by our court rules. See MCR 3.971. 1 And although it was not required to do so

1 MCR 3.971 is to be amended on the date this opinion is issued. MCR 3.971 previously provided, in part: (B) Advice of Rights and Possible Disposition. Before acceptin g a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file: (1) of the allegations in the petition; (2) of the right to an attorney, i f respondent is without an at torney; (3) that, if the court accepts the plea, the respondent will gi ve up the rights to (a) trial by a judge or trial by a jury, (b) have the petitioner prove the allegations in the petition b y a preponderance of the evidence,4 by our court rules, the court did not advise the respondents th at they could appeal its decision to take jurisdiction over JF.

(c) have witnesses against the respondent appear and testify un der oath at the trial, (d) cross-examine witnesses, and (e) have the court subpoena any witnesses the respondent believ es could give testimony in t he respondent’s favor; (4) of the consequences of the plea, including that the plea ca n later be used as evidence in a proceeding to terminate parental right s if the respondent is a parent. (5) if parental rights are subsequently terminated, the obligat ion to support the child will continue until a court of competent juri sdiction modifies or terminates the oblig ation, an order of adoption is entered, or the child is emancipated by operatio n of law. Failure to provide r equired notice under this subsection does not a ffect the obligation imposed by law or otherwise establish a remedy o r cause of action on behalf of th e parent. (C) Voluntary, Accurate Plea. (1) Voluntary Plea. The court sh all not accept a plea of admis sion or of no contest without satisfying itself that the plea is knowin gly, understandingly, and voluntarily made. (2) Accurate Plea. The court shall not accept a plea of admiss ion or of no contest without establishing support for a finding that o ne or more of the statutory grounds alleged in the petition are true, prefera bly by questioning the respondent unle ss the offer is to plead no cont est. If the plea is no contest, the court shall not question the respondent, but , by some other means, shall obtain support for a finding that one or more of t he statutory grounds alleged in the petition are true. The court shall stat e why a plea of no contest is appropriate. The amended rule does not alter this language. But the languag e that had appeared in MCR 3.971(C) will now appear in MCR 3. 971(D), the revised rule cont ains new language at MCR 3.971(C), and MCR 3.971(B) will contain additional subparts . Further references in this opinion to MCR 3.971(C) are to the language quoted in this footnote.5 At the initial dispositional hear ing held on January 12, 2016, the trial court adopted the family treatment plan proposed by the Department. That pla n required the respondents to complete psychological examina tions, maintain a clean home, and attend all of JF’s scheduled medical appointment s. The court’s initial dispositio nal order maintained JF’s placement in foster care and cont inued to allow JF to have unsu pervised 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 hea lth 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 (L GAL) described the respondents’ home as “habita ble” and “suitable” for JF. 2 And although the respondents’ treatment plan required them to ma intain a clean home, neither the parties nor the court focused on this issue at the first two dispositional review hea rings in April and July 2016. 3 But at the third and final dispositional hearing in October 201 6, the parties disputed the home’s suitability for JF. The trial court concluded the October hearing by authorizing th e Department to file a termination petition, but the c ourt noted that its decision w as limited to that procedural

2 The trial court had instructed t he LGAL to inspect the respond ents’ home at the initial emergency hearing on the petition.

3 The respondents successfully completed other aspects of the tr eatment plan. The respondents underwent court-or dered psychological evaluations. Those evaluations determined that neither respondent posed a signifi cant risk of physical or emotional abuse to JF. The psychologist reported that many of the alleged pare nting failures were attributable to a lack of schedul ing and organization. And the Department acknowledged at the permanency planning heari ng that the respondents had att ended all of JF’s medical appointments, in accordance w ith the treatment plan.6 step. The court was troubled by the conflicting testimony abou t 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 i ts observations and factual findings. The respondents’ attorn eys were prohibited from addr essing 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 wa s “inclined to speak with [JF]” and invited objections from couns el. 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 t wo statutory grounds for termination: MCL 712A.19b(3)(c)( i ) 4 and MCL 712A.19(3)(g). 5 The court determined that both grounds were satisfied by clear and convincing eviden ce because of the “very unhygienic household circumstance, and a lack of or inability t o create hygienic conditions . . . .” In its analysis of the child’s best intere sts, the court explained that the

4 MCL 712A.19b(3)(c)( i) allows the court to terminate a parent’s parental rights if “1 82 or more days have elapsed since the issuance of an initial disposi tional order, and the court . . . finds [that] [t]he conditions that led to the adjud ication continue to exist and there is no reasonable likelihood that the conditions will be rectifi ed within a reasonable time considering the child’s age.”

5 MCL 712A.19b(3)(g) allows the c ourt to terminate a parent’s pa rental rights if “[t]he parent . . . fails to provide proper care or custody for the ch ild and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time consider ing the child’s age.”7 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] Bifid a will thrive.” The respondents appealed. They challenged the trial court’s ju risdiction 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 u nrecorded visit to the family home and the in camera interview with JF. The Court of Appeals affirmed the trial co urt’s termination decision in an unpublished opinion. In re Ferranti , unpublished per curiam opinion of the Court of Appeals, issued May 10, 2018 (Docket No s. 340117 and 340118). The panel concluded that our holding in Hatcher prohibited it from considering the respondents’ claim that the tria l court violated their due-proc ess 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 cour t’s in camera interview was error, id . at 9. The respondents sough t leave to appeal in this Court. We grant ed oral argument on the application and directed the parties to address these issue s: (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 respondentparents from challenging the cour t’s initial exercise of jurisd iction over the respondents on appeal from an ord er terminating parental rights in that same proceeding; (2) if not, (a) by wh at standard should courts revi ew the respondents’ challenge to the i nitial adjudication, in light of the respondents’ failure to appeal the first dispositional order appealable of r ight, 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),8 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 tri al court may interview a child who is the subj ect of child protective procee dings 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 co urt rules de novo. In
re Sanders , 495 Mich 394, 404; 852 NW2d 52 4 (2014). Whether child protec tive proceedings complied with a paren t’s right to due process prese nts a question of constitutional law, which w e also review de novo. Id . at 403-404. De novo review means we review this issue independen tly, 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 perso n who suspects child abuse or neglect may report their concerns to the Department. MCL 712A.11(1). The Department, after conducting a pr eliminary investigation, may t hen petition the Family Division of the circuit court to take jurisdiction over the chi ld. MCR 3.961(A). That petition must contain, among other things, “[t]he essential fac ts” that, if proven, would allow the trial court to assume jurisdiction over the child. M CR 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 prob able cause that one or more9 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 pe tition, the adjudic ation phase fo llows. The question at adjudication is whether the trial court can exercise jurisdicti on over the child (and the respondents-parents) under MCL 712A.2(b) so that it can enter d ispositional 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 th e Department proves the allegations at a trial, see MCR 3.972. “If a trial is held, th e respondent is entitled to a jury, the rules of evidence generally apply, and the petitioner has t he burden of proving by a preponderance of the evidence on e or more of the statutory grou nds for jurisdiction alleged in the petition.” Sanders , 495 Mich at 405 (citations o mitted). And “[w]hile the adjudicative phase is only the fi rst step in child protective p roceedings, 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 giv es the state that authority in stead. Once the trial court’s jurisdic tion is established, the case mo ves 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 v iew of the facts proven and

6 If the child is not in protec tive custody and the petition doe s not request placement outside the family home, then a preliminary hearing is not required. I nstead, the probable-cause determination (and the appropriate course of action) is made th rough a preliminary inquiry, a comparatively less formal process. See MCR 3.962.10 ascertained.’ ” Id . at 406, quoting MCL 712A.18(1 ). During the dispositional pha se 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 appr opriateness for the child to be in foster care.” MCR 3.975(A). If the child is removed fro m the family home, the court must conduct a permanency planni ng hearing within 12 months fro m the date of removal. MCL 712A.19a(1); MCR 3.976(B)(2). This hearing results in eith er the dismissal of the petition and family reunification, or the court ordering the De partment to petition for the termination of parental rights . MCL 712A.19a(4); MCR 3.976(A). If the Department files a ter mination petition, the court holds a termination hearing. See MCR 3.977. The court acts as fact-finder, MCR 3.977(I), an d the rules of evidence generally do not apply, MCR 3.977(H)(2). If the court determin es by clear and convincing evidence that one or more statuto ry grounds for termination exi st, see MCL 712A.19b(3), the court must enter an order terminating the respondents’ parental rights unl ess the court determines that termination is clearly not in the child’s best interests. In re Trejo , 462 Mich 341, 344; 612 NW2d 407 (2000).
B. IN RE HATCHER

In Hatcher , 443 Mich at 428, we considered whether a respondent-parent ma y challenge the trial court’s “assumption of subject matter juris diction over a minor child . . . after a termination decision and, if so, whether th e entire termination proceedings should be declared void ab initio .” Or more simply: whether a parent could challenge errors in the adjudication when a ppealing the termination of hi s or her parental rights.11 The Hatcher trial court authorized the fili ng of a petition and placement of the child with the grandmother after conducting a preliminary hearing tha t 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 woul d support that jurisdiction. Id

. at 430; see MCL 712A.2(b). The court held three dispositional hearings before the permanency planning hearing; ne ither parent challenged the cour t’s jurisdiction at those hearings. Id

. at 430-431. Following the permanency planning hearing, the trial court terminated both parents’ rights. The father appealed, challeng ing the court’s adjudication. He argued, and the Court of Appeals agreed, that “the terminati on proceedings were void ab initio, [and] that the [trial ] court never assumed valid sub ject matter jurisdiction over the child,” because neither paren t ever admitted to facts suppo rting a statutory basis for jurisdiction. Id . at 432; see In re Waite , 188 Mich App 189, 208; 468 NW2d 912 (1991);
In re Nelson ; 190 Mich App 237, 241-242; 475 NW2d 448 (1991). We reversed. We held that the father’s claim of error (the adj udication-bystipulation) did not deprive the court of subject matter jurisd iction 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 establishe d when the action is of a class that the court is authorized to adjudicate , and the claim stated in the complaint is not c learly frivolous. The valid ex ercise of the probate court’s statutory jurisdiction is established by the co ntents 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 te stimony presented, he found probable cause that the allegations were tr ue. Consequently, it was proper for the court to invoke its jurisdi ction, assuming12 the court also had jurisdiction of the parties, a fact not here in dispute. Procedural errors that may have occurred did not affect the pro bate court’s subject matter jurisdiction. Although neither the mother nor the father stipulated facts th at supported the court’s jurisdic tion, this jurisdiction is initia lly established by pleadings, such as the petition, rather than by later trial pro ceedings that may establish by a preponderance of the evidence that a child is wi thin the continued exercise of the probate court’s subject matter jurisd iction. [ Id . at 437-438.] Again, more simply: Hatcher held that the trial court’s error did not deprive it of subject matter jurisdiction—it wa s simply an adjudicative error . And the father could not appeal that error; he should hav e either appealed the order aut horizing 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 juris diction by challenging the sufficiency of the petition . . . . Alternatively, he could ha ve pursued a number of statutory proceedings designed to redress a n erroneous exercise of jurisd iction.”), citing MCL 712A.19; MCL 712A.21. Because he did neither, we prohibited hi s 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 charact erization was novel and inconsis tent with our collateralattack jurisprudence. 8

7 It is unclear why the Hatcher Court viewed a challenge to the sufficiency of the petition as a suitable means for redressing the father’s claim of error in the adjudication—the trial court’s failure to establish by pl ea or trial any of the statut ory bases for jurisdiction set forth at MCL 712A.2(b). The error in the adjudication occurred after the preliminary hearing, when the probable-cause determi nation was made; the father coul d not have appealed an error that had yet to occur.

8 Hatcher overturned this Court’s decision in Fritts v Krugh , 354 Mich 97; 92 NW2d 604 (1958). Fritts , id . at 115, had permitted a challenge to a termination order in a writ of13 Later decisions summarized the rule from Hatcher as barring a respondent-parent from challenging errors in the ad judicative phase in an appeal from an order terminating the respondent’s parental rights, unless the termination of rig hts occurs at the initial dispositional hearing. See In re SLH , 277 Mich App 662, 668- 669; 747 NW2d 547 (2008). 9

habeas corpus, a separate and collateral action from the child protective proceeding that resulted in termination. A brief detour about Fritts is in order, because it gives some context to Hatcher . While the Fritts Court found that the initial petition sufficiently alleged jurisdictional facts, and the tria l court therefore “had jurisd iction . . . for purposes of hearing the neglect complaint,” id

. at 111, the Court still concluded that the trial court lacked (or had been divested of) jurisdiction to terminate the petitioners’ parental rights because of insufficient factual support for the allegations in the complaint (petition), id . at 115; see MCL 712A.2(b)(1). And while Fritts was a collateral attack on the trial court’s termination order, the Court ac knowledged that the petitioners’ challenge was not based on a lack of personal or subject matter jurisdiction, id

. at 120-121, but some other (and it seems, broader) concept of jurisdiction, id

. at 122 (“We hold that the orders entered upon the record of this hearing . . . re presented an erroneous conce pt of the power conveyed by statute upon the probate court sitting in juvenile division, an d that, being based upon no evidence of permanent neglect, th ey represented a fundamental m iscarriage of justice as to these petitioners and exceeded the s tatutory powers of the prob ate judge who entered them.”). Fritts was a true collateral attack; the dissent recognized this and c riticized the Fritts majority for allowing “the use of the writ of habeas corpus as a substitute for statutory appeal . . . .” Id . at 145 (B LACK , J., dissenting) (quotation marks and citation omitted). Here, as in Hatcher , there is no collateral proceedin g—the respondents’ arguments are on direct appeal from the orde r of termination. So while t he Hatcher Court’s desire to overrule Fritts ’s procedurally anomalous holding—t hat a termination order can be (truly) collaterally attacked—is understandable, see Hatcher , 443 Mich 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.”), and its criticism of Fritts ’s substantive jurisdictional holding is also sound, see id

. at 440-443, Hatcher was not a collateral attack. It was a direct appeal of an (unprese rved) adjudicative error.

9 In SLH , 277 Mich App at 668, the Court of Appeals explained that Hatcher has no application when termination is sought in a petition filed befo re the adjudication, because “an adjudication cannot be collaterally attacked . . . [unless] a termination occurs following the filing of a supplemental petition for termination after the issuance of the initial dispositional order.” (Cleaned up.)14 III. ANALYSIS A. RESPONDENTS’ ADJ UDICATORY PLEAS AND IN RE HATCHER The respondents believe that their due-process rights were viol ated 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 allega tions in the petition, at which the Department would h ave to prove those allegations by a prepo nderance of the evidence and the respondents would be per mitted to call their own witnes ses and cross-examine those produced by the Department. The respondents also fault t he trial court for its failure to advise them that their pleas c ould 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, cu stody, and control of
JF. See Sanders , 495 Mich at 415. And the Due Process Clause of the Fourteent h 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 assum ed 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 adjudicat ory plea); see also People
v Cole , 491 Mich 325, 332-333; 817 NW2d 497 (2012) (“For a plea to co nstitute an effective waiver of . . . rights, t he 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, u nderstandingly, and15 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 i s 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 (incl uding the possibility that the plea will “be used as evidence i n a proceeding to terminate par ental rights,” MCR 3.971(B)(4)), and to provide advice about the respondent’s post termination support obligations. The Department concedes that the trial court did not comply wit h 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 responde nts 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 res pondent from vindicating a due-process violation.
Hatcher made a foundational mistake; it erroneously applied the rule f rom Jackson City Bank & Trust Co v Fredrick , 271 Mich 538; 260 NW 908 (1935)—that a court’s exercise of jurisdiction cannot b e collaterally attacked in a s econd 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 jurisd iction over the parties, or the subject-matter, no matter what formalities may ha ve been taken by the trial cou rt, the action thereof is void because of its w ant of jurisdiction, and conseq uently its proceedings may be questioned co llaterally 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 pa rties, the action of the trial court, though invol ving an erroneous exercise of j urisdiction, which might be taken advantage of by direct appeal, or by direc t attack, yet the judgment or decree is not void though it might be set aside for the16 irregular or erroneous exercise of jurisdiction if appealed fro m. It may not be called in question collaterally. Put differently, the “collateral b ar” rule generally prohibits a litigant from indirectly attacking a prior ju dgment in a later, separate action, unless the court that issued the prior judgment lacked jurisdiction ove r the person or subject matter in the first instance. See In
re Ives , 314 Mich 690, 696; 23 NW2d 13 1 (1946). Instead, the litigant must seek relief by reconsideration of the judgment from the i ssuing court or by di rect appeal. 10
Hatcher applied the collateral-bar rule t o conclude that a respondent who appeals a defect in the adjudicative phase a t the end of the child protec tive proceeding (in an appeal from an order terminating parental rights) is “collaterally” at tacking that very same child protective proceeding. But that holding failed to recognize th at “[a] child protective proceeding is ‘a single continu ous proceeding’ ” that begins wi th a petition, proceeds to an adjudication, and—unless the family has been reunified—ends wit h a determination of whether a respondent’s parenta l rights will be terminated. In re Hudson , 483 Mich 928, 935 (2009) (C ORRIGAN , J., concurring), quoting In re LaFlure , 48 Mich App 377, 391; 210 NW2d 482 (1973). Collateral-bar jurisp rudence makes the Hatcher Court’s mistake obvious

. The rule bars a litigant from ch allenging a ruling or judgment in a late r and separate case. Thus, in

10 Jackson City Bank ’s general rule prohibiting collateral attacks on a court’s final judgment is well settled and co mmon across jurisdictions. See Hazel-Atlas Glass Co v Hartford-Empire Co , 322 US 238, 244; 64 S Ct 997; 88 L Ed 1250 (1944) (“Federal c ourts, both trial and appellate, long a go established the general rule that they would not alter or set aside their judgments after the expiration of the term at w hich the judgments were finally entered. . . . This salutary general rule springs from the belief that in most instances society is best served by putting an end to litigation after a case has been tried and judgment entered.”).17 Jackson City Bank , 271 Mich at 546, we held that the plaintiffs, heirs of the de fendant’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 NW2d 315 (1943) (defendant-surety barred from seeking reformation of a surety bond in a later col lection action brought by the plaintiff-creditor); Edwards v Meinberg , 334 Mich 355; 54 NW2d 684 (1952) (error in venue did not divest the issuing court of subject matter jurisd iction, 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 d id so in a separate, later proceeding (and even i n 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 depriv e the court of subject matter jurisdiction, as the Court of App eals thought, but merely affec ted “the procedure by which the probate court proceeded afte r it had established subject ma tter 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-ba r rule from Jackson City Bank to bar appellate review of the e rror 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 res pondent-father should have done contradicts its conclu sion. The Court reasoned that the father could have raised the adjudication error at one of the dispositional review heari ngs or even in a motion for18 rehearing from the order terminating parental rights. Id

. at 436. 11 But this rationale conflicts with the Court’s conclusion that his appeal raising t hat 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 wi ll be treated as “unpreserved” if challenged on appeal.
See People v Carines , 460 Mich 750; 597 NW2d 130 (1999); People v Grant , 445 Mich 535; 520 NW2d 123 (1994). But issue preservation dictates the appellate standard of review; it does not transform direct review into collateral att ack. See Carines , 460 Mich at 761-764 (discussing the plain-error doctrine).
Hatcher was wrongly decided. But we don’t disrupt precedent wh enever that’s the case. We ha ve to consider whether Hatcher ’s precedential value compels us t o retain its rule of decision under the principles of stare decisis. Coldwater v Consumers Energy Co , 500 Mich 158, 172; 895 NW2d 154 (2017) (stating that the mere fact that “a case was wr ongly 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 practic al workability, whether reliance interests would work an undue hardship were the decisi on to be overruled, and whether changes in the law or facts no longer justify the decis ion,” 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

11 The Court also reasoned that t he father could have challenged the sufficiency of the petition or the probable- cause determination. Hatcher , 443 Mich at 438. But as discussed above at note 7, those procedural steps occurred well before th e trial court’s error.19 one parent was improperly adjud icated as unfit and holding that the one-parent doctrine is unconstitutional); In re Mays , 490 Mich 993 (2012) (reversing a termination af ter the trial court made an erroneous factual finding during the adjudication phase); In re Mason , 486 Mich 142; 782 NW2d 747 (2010) (re versing a termination based on the failure to facilitate the respondent’s involvement and participation during the adjud ication 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 parenta l rights); In re Mitchell , 485 Mich 922 (2009) (same); In re Jones , 499 Mich 862 (2016) (reversing a parental termination order afte r the Court of Appeal s held that the resp ondent’s claims were barred by Hatcher ); Wangler , 498 Mich at 911 (same). While we overrule Hatcher only now, if these exceptions haven’t fully s wallowed 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 ha s proved difficult to apply or implement. See, e.g., Montejo v Louisiana , 556 US 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 claim s 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, espec ially when a respondent’s due-process rights are violated in the adjudicatio n. 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.20 We also consider reliance intere sts, including “whether relianc e 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 wo uld produce not just readjustments, but practical real-world dislocations.” Id . (quotation marks and citation omitted). Hatcher has scant application; it just imposes procedural limitations o n 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 ra ise a claim of error within the procedural restrictions of Hatcher had little stability, given our growing exceptions to it. And lawyers a nd 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 the y couldn’t appeal the dueprocess violation that resulte d from their defective plea unles s they did so immediately. Finally, we consider whether changes in the law or facts no lon ger 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 ca n appeal an adjudicative error in an appeal from an order terminating parental rights. T he erosion of the rule by its ex ceptions has created uncertainty; we should be providing clarity.21 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 “pro vide 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 j uvenile code to support children in their own homes, see MCL 712A.1(3) (“This chapter shall be l iberally construed so that each juvenile coming within the c ourt’s jurisdiction receives t he care, guidance, and control, preferably in his or her own home, conducive to the ju venile’s welfare and the best interest of the state.”), and the protection of the constitutio nal rights of families. “The right to parent one’s children is esse ntial 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 US 390, 399-400; 43 S Ct 625; 67 L Ed 1042 (1923), and
Troxel v Granville , 530 US 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 i tself into the private realm of the family” because “th ere is a presumption that fit p arents act in the best interests of their children.” Troxel , 530 US at 68. Thus, “[w]hen a child is parented by a fit par ent, the state’s interest in the child’s welfare is perfectly aligne d with the parent’s liberty interest.” Sanders , 495 Mich at 416. For that reason, it is the “[a]djudication [that] protects

12 Although we overrule Hatcher , we agree with its criticism of Fritts . An error in the adjudication (the error in Fritts , Hatcher , and here) will not, as a g eneral matter, provide a parent with grounds to collaterall y attack the order of termina tion in a later, separate proceeding, as the Court permitted in Fritts . But Hatcher ’s prescription of prohibiting direct appellate review was a misfire.22 the parents’ fundamental right t o direct the care, custody, and control of their children, while also ensuring that the state can protect the health and s afety of the children.” Id . at 422.
But Hatcher disrupts the careful balancing of interests in our juvenile cod e by preventing judicial review of mer itorious claims of defects in the adjudication. That is, it prevents review of mistakes in the government process that perm anently separates a parent from a child. A paren t’s only remedy under Hatcher is by way of an interlocutory appeal, disincentivizing him or her from timely cooperating with the De partment and further delaying a final determination. Hatcher disserves parents, their child ren, and the state. It’s time to disavow it. On to the merits. The parties agree that adjudication errors r aised after the trial court has terminated parental rights are reviewed for plain error. S ee 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 c ould 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 err or was “plain,” i.e., clear or obvious; and (3) the plain error affected their substantial rig hts. Carines , 460 Mich at 763. And the error must have “serious ly affect[ed] the fairness, int egrity or public reputation of judicial proceedings[] . . . .” Id . (citation and quotation ma rks omitted; alteration in original). 13

13 The final requirement of plain-error review is also satisfied “when the plain, forfeited error resulted in the conviction of an actually innocent defend ant,” Carines 460 Mich at 763, which reflects plain error’s origin as a rule of federal criminal procedure, see United States v Olano , 507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993); FR Crim P 52. We23 The Department acknowledges that the first and second prongs ar e satisfied. Due process and our court rules require a trial court to advise res pondents-parents of the rights that they will waive by their plea and the consequences that ma y flow from it. The court erred by failing to advise these respondents of the consequence s of their pleas and the rights they were giving up; tho se errors were plain. But the Department believes that the errors did not affect the respondents’ substantial rights because it would have been able to prove the allegations had the case proceeded to an adjudication tria l. This misses the point; the constitutional deficiencies here are not forgiven by what might have transpired at trial. The respondents’ pleas were not knowingly, understandingly, and voluntarily made. Wangler , 498 Mich at 911 (“[W]e conclude that the trial court violated MCR 3.971(C)(1) by faili ng to satisfy itself that the respondent-mother’s plea was know ingly, understandingly, and vo luntarily made, and violated MCR 3.971(C )(2) by failing to establish support for a finding that one or more of the statutory grounds alleged in the petition were true. There fore, the manner in which the trial court assumed jurisdiction violated the respondent-mother ’s due process rights.”). The respondents were deprived of their fundamental right to dir ect the care, custody, and control over JF based on th ose invalid pleas. And the inva lid pleas relieved the Department of its burden to prove that the respondents were unf it at a jury trial, with all of its due-process protections. See Sanders , 495 Mich at 405 (explaining that in an

have applied Carines ’s plain-error test in appeals from juvenile proceedings. See, e.g., Mitchell , 485 Mich at 922. The Court of Appeals has as well. See In re VanDalen , 293 Mich App 120, 135; 809 NW2d 412 (2011). But we did so without explanation. We apply the test here because neither party has argued for a different standard for juvenile proceedings despite the differen ces between these cases and cri minal cases.24 adjudication trial the respo ndent “is entitled to a jury, . . . the rules of evidence generally apply, . . . and the petitioner has the burden of [proof]”). T hese constitutional deprivations affected the very framework with in which respondents’ case proc eeded. There was error, it was plain, and it affected the respondents’ substantial righ ts. See Mitchell , 485 Mich at 922; Hudson , 483 Mich at 928. Finally, we conclude that the error here seriously affected the fairness, integrity, or public reputation of judicial pr oceedings. The trial court did not advise the respondents that they were waiving any of the important rights identified i n MCR 3.971(B)(3). And it failed to advise the respondents of the consequences of enterin g their pleas. MCR 3.971(B)(4). This failure resulted in the respondents’ constit utionally defective pleas and undermined the foundation of the rest of the proceedings. The defective pleas allowed the state to interfere with and then terminate the respondents’ fun damental right to parent their child. Due process requires more: either a plea hearing that c omports with due process and the court rule or, if re spondents choose, a trial. MCR 3.971; MCR 3.972. We thus vacate the trial court’s order of adjudication.
B. THE TRIAL COURT’S IN CAMERA INTERVIEW The respondents also believe tha t their due-process rights were violated by the trial
court’s in camera interview of JF. See In re HRC , 286 Mich App 444, 455-456; 781 NW2d 105 (2009). They have asked us to vacate the court’s order ter minating parental rights and remand the case to a different trial judge—the Court of Appeals ’ remedy in HRC , which held that “the use of unrecorded, in camera interviews in termi nation proceedings violates parents’ due process rights.” Id

. at 455.25 This Court has never addressed the propriety of a trial court c onducting an in camera interview of the subject child in the context of a child protec tive proceeding. The HRC panel’s holding reflected its concern that in camera interviews might unduly influence the trial court’s factual findings and termination decision, and be cause the process provides no opportunity for cross-examination by respondents or their couns el, the practice also prejudices a respondent’s ability to impeach the witness and fo recloses meaningful appellate review. Id . at 455-456. The inability to un-ring the bell required a dif ferent judge on remand. Id . at 457 (“[B]ecause we do not kn ow what information the trial court learned during those interviews, we cannot ascertain whether the trial court would be able to set aside any information obtained in making a new determination . . . .”). The Department does not argue that HRC was wrongly decided. It argues that the respondents waived this due-process claim when their counsel su pported the trial court’s suggestion. On the second day of the termination hearing, the respondents’ attorneys indicated that they had no further witnesse s to call. This prompted the following exchange:
The Court : I have a question for counsel. I’m inclined to speak with [JF]. I mean, I’ve heard a lot of description about it and the counsel who represent her parents may need to talk to the parents. It’s no t specifically provided for. In the statute where it is in the domestic relat ions when there is a divorce or custody matter, and I’ve done dozens, if not hu ndreds of those, and when I do it I have somebody in there with me, just because I think that’s a better policy. Anyone has a right to object, so I’m just con templating is that all right or is there an opposition to it?
Ms

. Breuker [counsel for the Department]: In this particular case, I don’t necessarily have a problem with it. The Court : All right. I wouldn’t do it in most, but—Mr. Leonardson?26 Mr

. Leonardson [counsel for respondent-father]: Your Honor, I would actually request it. I think it’s important in this particular case because there is such a strong bond with the family, and that bond, part of i t is because of [JF’s] needs through her entire life. The Court : Sure. But you don’t object to that?
Mr

. Leonardson : No, I certainly don’t. The Court : Mr. Gelow? Mr. Gelow [counsel for respondent-mother]: We don’t object. We encourage the Court to talk with [JF]. The court then discussed the logistics of arranging to speak to JF. After reviewing its docket, the court indicated to its clerk that it would spea k to JF immediately before one of the respondents’ upcoming parenting-time visits 14 and that it might conduct the interview in chambers if there were “a lot of people” in the co urtroom. This logistical discussion involved only the court, its clerk, and the Departme nt; the respondents and their lawyers were not included. On th e basis of this record, the Co urt of Appeals agreed with the Department that the respondents had waived any challenge re lating to the interview.
Ferranti , unpub op at 7. We disagree. Waiver is “the intentional relinquishment or aban donment of a known right,” as distinct from a litigan t’s failure to timely assert that right (forfeiture). Carines , 460 Mich at 762 n 7 (quotation marks and citation omitted). He re, the respondents’ agreement to the general idea of the court speaking to JF did n ot waive their right to have

14 Although the respondents and JF enjoyed unsupervised visits wi thout incident throughout the adjudication an d dispositional phase, the court modified its initial visitation order in January 2017, shortly after it allowed the Department to file the supplemental petition seeking termination of t he respondents’ parental right s. By the time of the termination hearing, the respondents’ parenting time was limite d to Department-supervised visits.27 that interview comport with due process. The respondents endor sed only the court’s initial proposal that the court was “inclined to speak to [JF].” But t he court never sought—and the respondents never gave—their agreement about how that conve rsation would take place. Those details matter. It is not apparent from the record wheth er the respondents thought they were agreeing to a n on-the-record interview with c ounsel and with the opportunity for their own exami nation of JF, or if the responde nts knew that the court’s process would entail none of that. 15 The record supports only that the respondents were consenting to a conversation between the judge and JF, with the specifics yet to be determined. Because the court c ould have conducted that interv iew in a way that would

not have triggered due-process concerns, 16 we cannot conclude that the respondents’ support of the court’s general s uggestion amounted to the “inte ntional relinquishment or abandonment of a known right.” Carines , 460 Mich at 762 n 7 (quotation marks and citation omitted). We agree with the Court of Appeals that “the use of unrecorded, in camera interviews in termination proceedings violates parents’ due pro cess rights.” HRC , 286 Mich App at 455.

15 While the Department suggests in its briefing that the respond ents were aware of the procedure the court intended to use, it cites no record support . And the record seems to contradict this claim. The court discussed its plans only after soliciting the respondents’ support, and then only in vague terms. And at the final day of the termination hearing, counsel for the respondent-father , while presenting his closing argument, referred to the prospect of the court speaking with JF. The trial court prompt ly interjected to inform counsel that, much to his surpris e, the trial court had already interviewed her.

16 Most obviously, the court might have examined JF on the record , in the presence of the parties and counsel, and with t he opportunity for examination o f the witness.28 As the HRC panel explained, there is “nothing in the juvenile code, the c aselaw, the court rules, or otherwise [that] permits a trial court presidin g over a termination of parental rights case to conduct in camera interviews of the children for purposes of determining their best interests.” Id . at 454. And while we sympathize with the court’s apparent concern that testifying on the record and in the presence of pa rties and counsel would have caused discomfort to JF, that interest does not outweigh the re spondents’ interest in having any testimony on the record, give n “the fundamental parental ri ghts involved in termination proceedings, the risk of an erro neous deprivation of those righ ts given the in camera procedure, and the fact that the information is otherwise easil y obtained . . . .” Id

. at 456; see also Sanders , 495 Mich at 410-411 (discussing the three-part balancing test used to determine the constitutional suffi ciency of procedures when the state seeks to interfere with a parent’s rights). On remand a different judge must preside. 17
IV. CONCLUSION We hold that an appeal of an adjudication error in an appeal fr om an order terminating parental rights is not a collateral attack. The co llateral-bar rule does not apply within one child protective ca se, barring some issues from revi ew. Hatcher was wrongly decided, and we overrule it. The trial court violated the respondents’ due-process rights wh en it accepted the respondents’ pleas without advis ing them of their rights or ens uring that the respondents’

17 The Department argues that the respondents waived this claim; it makes no argument about what standard should apply if the error wasn’t waived. T he Court of Appeals in HRC reviewed for plain error; the panel’s analysis did not depend o n the respondent-parent showing outcome-determinative e rror, presumably because the nat ure of the trial court’s error makes that impossible. See HRC , 286 Mich App at 456-457.29 pleas were knowingly, understandingly, and voluntarily made. Wangler , 498 Mich at 911; MCR 3.971. Because it was these legally erroneous pleas that g ave the trial court the dispositional authority to terminate the respondents’ parental rights, we vacate that order, and the court’s order of adjudication, and remand this case to the trial court for further proceedings consistent with this opinion. And the trial court’ s improper in camera interview of JF requires that a d ifferent judge preside on rema nd.

Bridget M. McCormack David F. Viviano Richard H. Bernstein Elizabeth T. ClementS T A T E O F M I C H I G A N
SUPREME COURT

In re FERRANTI, Minor.
No. 157907

M ARKMAN , J. ( dissenting ). I respectfully dissent from the ma jority’s reversal of the judg ment of the Court of Appeals. The majority in the process overrules In re Hatcher , 443 Mich 426; 505 NW2d 834 (1993), which held that an adjudication cannot be collatera lly attacked following an order terminating parental rights. I would not overrule Hatcher because I believe that it was correctly decided and that no sound reason to alter its com mon-law rule has been presented. Indeed, both parties and the amici ag ree that it ma kes sense to require a timely appeal of the adjudication, which is all that Hatcher does, and this Court has just recently adopted court rule amendments t hat essentially incorporate Hatcher into our court rules. 1 The majority nevertheless chooses in this case to overrule Hatcher , which would allow adjudication challenges to be brought years after the adjudicat ion but for these same amendments. Because I believe t he Court of Appeals correctly h eld that: (a) respondents

1 The Court entered an order amending MCR 3.965, MCR 3.971, MCR 3.972, MCR 3.973, and MCR 3.993 immediately before the release of this opinion. Therefore, citations of court rules in this opinion refer to the court rules as amended on June 12, 2019. References to the court rules as they existed before adoption of these ame ndments will be indicated using the term “former” precedi ng the court rule number. Given that the “former” court rules were the ones in existence at the time of the adjudicatio n in this case, they are the ones applicable to this case.2 cannot collaterally attack the ins tant adjudication after their parental rights have been terminated, (b) respondents waive d the issue pertaining to the interview of the child, and (c) any error on the trial court’ s part in visiting respondents ’ home was harmless, I would affirm the judgment of the Court of Appeals.
I. BACKGROUND The child whose future is at issue here, JF, was born in 2003 a nd has several serious medical issues, including spina bifida, stage three chronic kid ney disease, and a neurogenic bladder (a dysfunction caused by neurological damage). As a re sult of a lack of innervation to the lower half of her body, she has a stoma in her umbilicus to catheterize her bladder and another stoma in the lower quadrant to flush her bowel. Sh e is unable to walk independently and therefore is m obile exclusively by using a wh eelchair or walker or by crawling. Respondents-parents live in a small mobile home with JF and three other children, and they have a dog and cats. Their home is cluttere d, and the presence of animal fecal matter and urine on the fl oor is particularly problematic for JF because she is forced to crawl around the home given the small size of the home and t he clutter. This exposes her to organisms that lead to frequent urinary tract infections , which, in turn, affects her kidneys and is likely to hasten the time at which she will requ ire a kidney transplant. 2 According to the 2015 petition to remove JF from her home and p lace her in foster care under the supervision of petitioner, the Department of Hea lth and Human Services (the Department), as far back as 2013, there was substantiated medical neglect on the part

2 When JF was removed from respondents’ home, she had medical la boratory work performed that revealed that she had a urinary tract infection caused by two organisms that are typically found inside the mouths of cats and dogs.3 of respondents, including missed medical appointments and the f ailure to appropriately care for JF’s medical needs. Later in 2013, physical neglect d ue to filthy home conditions was substantiated. All the children were placed in foster care , but the case was terminated in late 2014 following respondent s’ eventual compliance with th e trial court’s requirements. In 2015, JF’s school contacted Child Protective Services (CPS), reporting that JF often appeared at school with a foul smell of body odor and urine and that she often ran out of catheters. JF was th erefore prevented from catheter izing herself on a consistent schedule, which is required to a void urinary tract infections. A CPS caseworker went to the home, where she saw animal feces on the hallway carpet, dir ty dishes on the kitchen counter and filling the sink, and random clutter throughout the home. There were pathways through the clutter to allow the family to move about, but the paths were insufficiently wide to allow navigation by a whe elchair or walker. The condit ion of the home required JF to crawl in order to get from room to room. The bathroom to ilet had fecal matter both inside and outside of the toilet bowl, and the entire home reek ed of human and animal urine. There was no way for JF to avoid dragging her legs and feet through dirt and animal feces. Respondents had missed JF ’s nephrology appointments for the prior three months, and medications for her kidneys had not been refilled for six m onths. She had not seen her orthopedic specialist for almost a year, even though she was su pposed to participate in twice-weekly physical therapy sessions. Recommended six-month visits with a urologist had also been missed. The petition to remove JF from he r home in this case was filed on October 29, 2015. A probable-cause hearing was held on the same day, and the tria l court authorized JF’s removal. Preliminary hearings were then held on November 3, 20 15, and November 17,4 2015, and the trial court found probable cause to authorize the petition. On December 21, 2015, respondents admitted to fa iling to timely fill JF’s presc riptions, and the trial court relied on these admissions to ex ercise jurisdiction. A disposi tional hearing was held on January 12, 2016, at which time a treatment plan was adopted an d support services were arranged. Review hearings were subsequently held on April 12, 2016, and on July 12,
2016. At a hearing on October 18, 2016, it was reported that support services were terminated because res pondents had not made progress and the co ndition of their home had not changed. The participating social services worker recommen ded termination of parental rights because the co nditions in the hom e had not sign ificantly improved. JF’s guardian ad litem also recommende d terminating respondents’ par ental rights. The trial judge visited the home himself, although he did not make a reco rd of his findings. He authorized a petition for termination of parental rights, and h earings were held on May 10, 2017, June 20, 2017, and July 5, 2017. The trial judge indicat ed that he would like to speak with JF. When asked if the par ties had any objections, respond ent-father’s attorney said that he would “actually request it” and respondent-mother’s att orney said that he would “encourage the court to talk with [JF].” The trial court spoke with JF off the record and terminated respondents’ parenta l rights on August 7, 2017. Respondents appealed in the Court of Appeals, contending that t he trial court lacked jurisdiction to terminate their parental rights because it had failed to follow court rules at the adjudication stage of the proceedings, i.e., the trial cour t failed to inform respondents of the rights they would be wai ving if their pleas admitting to the jurisdiction of the court were accepted, MCR 3.971(B)(3), and failed to inform them of th e consequences of their5 plea, MCR 3.971(B)(4). They also argued that the trial court e rred by personally visiting their home and interviewing the child. The Court of Appeals affirmed the termination. In re Ferranti , unpublished per curiam opinion of the Court of Appeals, issued May 10, 2018 (Do cket Nos. 340117 and 340118). It held that, even assuming that the trial court fail ed to follow the proper procedures under former MCR 3.971(B) 3 when taking respondent s’ pleas, respondents failed to timely appeal and coul d not collaterally attack the a djudication after the trial court had terminated their parental rights. Id . at 6. The Court of Appeals also held that although the trial court erred by persona lly visiting and viewing respon dents’ home, reversal was not warranted because respondents did not demonstrate that the error in any way affected their substantial rights. Id . at 8-9. Finally, it held that respondent s waived their chall enge to the court’s in camera interview of JF. Id . at 9. This Court subsequently ordered and heard oral argument on whether to grant respondents’ applicatio n for leave to appeal. In
re Ferranti , 502 Mich 906 (2018).
II. STANDARDS OF REVIEW The collateral-attack rule is a common-law rule. Note, Collateral Bar and Contempt: Challenging a Cour t Order After Disobeying It , 88 Cornell L Rev 215, 219 n 15 (2002). The interpretation and applicability of a common-law r ule is a question of law that is reviewed de novo. Haksluoto v Mt Clemens Regional Med Ctr , 500 Mich 304, 310; 901 NW2d 577 (2017). “[W]hen it comes to alteration of the common law, the traditional rule

3 See MCR 3.971(B), as amended March 28, 2018, 501 Mich ___ (201 8), effective May 1, 2018.6 must prevail absent compelling reasons for change.” Price v High Pointe Oil Co, Inc , 493 Mich 238, 260; 828 NW2d 660 (2 013). In addition, whether due-p rocess concerns may override the collateral-attack r ule poses a question of constit utional law that is reviewed de

novo. Winkler v Marist Fathers of Detroit, Inc , 500 Mich 327, 333; 901 NW2d 566 (2017). Finally, the interpretation of sta tutes and court rules is also a question of law that is reviewed de novo. People v Comer , 500 Mich 278, 287; 901 NW2d 553 (2017).
III. ANALYSIS

A. HATCHER The trial court clearly erred in failing to abide by MCR 3.971( B)(3) and (4) at the adjudication proceeding, i.e., it failed to apprise respondents of their rights that they would be waiving if their pleas admitti ng to the jurisdiction of the court were accepted and failed to apprise them of the consequences of their pleas. 4 However, respondents did not appeal

4 MCR 3.971 provides, in pertinent part: (B) Advice of Rights and Possible Disposition. Before acceptin g a plea of admission or plea of no contest, the court must advise the respondent on the record or in a writing that is made a part of the file: * * * (3) that, if the court accepts the plea, the respondent will gi ve up the rights to (a) trial by a judge or trial by a jury, (b) have the petitioner prove the allegations in the petition b y a preponderance of the evidence, (c) have witnesses against the respondent appear and testify un der oath at the trial,7 the adjudication until after the trial court had terminated the ir parental rights, nearly two years after the adjudication. Th is Court has held that such co llateral attacks are impermissible. Hatcher , 443 Mich at 437. That is, Hatcher held that a parent cannot wait to challenge the adjudication until after the parent’s parental rights have been terminated. As we recognized, “If such a delayed attack were always possibl e, decisions of the probate court would forever remain ope n to attack, and no finality woul d be possible.” Id . at 440 (quotation marks and cita tion omitted). Accordingly, Hatcher held: Our ruling today severs a party ’s ability to challenge a probat e court decision years later in a collateral attack where a direct appeal was av ailable. It should provide repose to adoptive parent s and others who rely upon the finality of probate court decisions. [ Id . at 444.] As this Court recently explained in In re Sanders , 495 Mich 394, 404; 852 NW2d 524 (2014): In Michigan, child protective pr oceedings comprise two phases: the adjudicative phase and the dispositional phase. Generally, a c ourt determines whether it can take jurisdiction over the child in the first pl ace during the adjudicative phase. Once the court has jurisdiction, it determ ines during the dispositional phase what course of action will ensure the child ’s safety and well-being. [Citations omitted.] Child protective proceedings b egin with the filing of a petitio n. MCR 3.961. The trial court must decide at that juncture whether to authorize the pet ition, which is done “upon a

(d) cross-examine witnesses, and (e) have the court subpoena any witnesses the respondent believ es could give testimony in t he respondent’s favor; (4) of the consequences of the plea, including that the plea ca n later be used as evidence in a proceeding to terminate parental right s if the respondent is a parent.8 showing of probable cause, unless waived, that one or more of t he allegations in the petition are true and fall within MCL 712A .2(b).” MCR 3.965(B)(12). If the court authorizes the petition, the case then proceeds to the adjudicative phase, in which the court must determine, by plea or trial, whether one or more of the statuto ry grounds alleged in the petition have been proved by a preponderan ce of the evidence. MCR 3.971; MCR 3.972(E). Once the trial court determines that one or more of the statutory grounds alleged in the petition have b een proved by a prepo nderance of the evid ence, the respondent has been adjudicated and the court proceeds to the dispositional ph ase. The dispositional phase consists of review hearings and orders imposing courses of action that will ensure the child ’s safety and well-being. “A dispositional hearing is conducted to determine what measu res the court will take with r espect to a child properly within its jurisdiction and, whe n applicable, against any adult , once the court has determined following trial, plea of admission, or plea of no co ntest that one or more of the statutory grounds alleged in the petition are true.” MCR 3.973 (A). “[A]n order of disposition placing a minor under the supervision of the court or removing the minor from the home” is “appealab le to the Court of A ppeals by right[.]” Former MCR 3.993(A)(1). 5 “[T]he dispositional phase ends w ith a permanency planning hear ing, which results in either the dismissal of the ori ginal petition and family reunif ication or the court’s ordering [the Department] to file a petition for the termination of pare ntal rights.” Sanders , 495 Mich at 407.

5 See MCR 3.993(A)(1), as adopted February 4, 2003, 467 Mich ccc xxxiii (2003), effective May 1, 2003.9 As this Court has explained, “[T]he probate court’s subject mat ter jurisdiction is established when the action is of a class that the court is aut horized to adjudicate, and the claim stated in the complain t is not clearly frivolous.” Hatcher , 443 Mich at 437. That is, formal jurisdiction is “established by pleadings, such as the p etition,” not by the evidence.
Id . at 438; see also id . at 443 (“That the evidence failed to support the petition did not affect the jurisdiction of the court, i n the proper sense of the term, to hear the cause and to make the order.”) (quotation mark s and citation omitted). What the court does in response to the petition represents the exercise of the court’s jurisdiction. If the trial court errs while exercising its jur isdiction, this does not affect the court’s subject matter jurisdiction itself. Id . at 437 (“Procedural errors that may have occurred did not affect the pr obate court’s subject matter juri sdiction.”). As we explained
in Hatcher , 443 Mich at 438-439: Want of jurisdiction must be distinguished from error in the ex ercise of jurisdiction. Where jurisdict ion has once attached, mere er rors or irregularities in the proceedings , however grave, although they may render the judgment erroneous and subject to be set aside in a proper proceeding for that purpose, will not render the judgment void, and until set aside it is valid and binding for all purposes and cannot be collaterally attacke d. Error in the determination of questions of la w or fact upon which the court’ s jurisdiction in the particular case depends, the court having general jurisd iction of the cause and the person, is error in the exercise of jurisdiction. Jurisdiction to make a determination is not dependent upon the correctness of t he determination made. [Quotation ma rks and citations omitted.] While “lack of subject matter ju risdiction can be collaterally attacked[,] . . . the exercise of that jurisdiction can be challenged only on direct appeal.” Id . at 439. To be precise, the exercise of jurisdiction “ca nnot . . . be challenged years late r in a collateral attack.” Id . at 439-440 (quotation marks and citation omitted); see also In re Gazella , 264 Mich App 668,10 679-680; 692 NW2d 708 (2005) (“Ma tters affecting the court’s ex ercise of its jurisdiction may be challenged only on direct appeal of the jurisdictional d ecision, not by collateral attack in a subsequent appeal of an order terminating parental rights.”); 6 In re SLH , 277 Mich App 662, 668; 747 NW2d 547 (2008) (“Ordinarily, an adjudic ation cannot be collaterally attacked following a n order terminating parental r ights.”).
In SLH , 277 Mich App at 668-669, 669 n 13, the Court of Appeals expla ined that an adjudication challenge following an order terminating parent al rights is not a collateral attack when termination occurre d at the initial disposition: Ordinarily, an adjudication cannot be collaterally attacked fol lowing an order terminating parental rights. That is true, however, o nly when a termination occurs following the filing of a supplemental petit ion for termination after the issuance of the initial dispositional ord er. If termination occurs at the initial disposition as a result of a request for termination contained in the original, or amended, petition for jurisdictio n, then an attack on the adjudication is direct a nd not collateral, as long as th e appeal is from an initial order of disposition c ontaining both a finding that an adjudication was held and a finding that the children came within the jurisd iction of the court. 13

13

. . 

### . [B]ecause an initial order of dis position is the first order ap pealable as of right, an appeal of the adjudication following the issuance of an initial dispositional order is not a collateral attack on the initial a djudication, but a direct appeal, notwithstanding that a termination of parental r ights may have occurred at the initial dispositional hearing.

6 In Gazella , 264 Mich App at 680, the Court of Appeals asserted: As noted earlier, the original order of disposition entered Jun e 2, 2003, and filed June 5, 2003, stated that a n adjudication was held, that the children were found to come within the jurisdi ction of the court, and that th ey were placed in out-of-home care. That is the order that was appealable as of right to challenge the adjudication. By not appealing that order, respo ndent lost her right to challenge the court’s exercise of jurisdiction.11 Essentially, what SLH explained is that if a respondent-parent appeals the adjudicat ion at the first opportunity that he o r she can, this does not constit ute a collateral attack.
In SLH , the trial court had orally det ermined that the children came within its jurisdiction and then set the m atter for a dispositional hearin g without first entering an adjudication order. Following t he dispositional hearing, the t rial court entered an order of disposition and an order termina ting parental rights on the sam e day, and both orders stated that an adjudication was held and that the children were found to fall within the jurisdiction of the court. The respondent-parent appealed, arguing that the trial court erred by taking jurisdiction over the children. T he Court of Appeals held that this did not constitute a collateral attack because the cont emporaneous order of disposit ion and order terminating parental rights “contain the fi rst appealable finding of adjudi cation that the children came within the jurisdic tion of the court.” Id . at 668. In summation, an adjudication cannot be collaterally attacked f ollowing an order terminating parental rights unle ss the termination occurred at the initial disposition. In the instant case, however, the adjudi cation and the termination wer e separated by a lengthy period of attempts at reunification. Therefore, respondents ar e barred from collaterally attacking the adjudication. At an adjudication hearing on December 21, 2015, respondents ad mitted to some of the allegations in the petition, a nd on January 12, 2016, the c ourt entered a dispositional order. Additional dispositional hearings occurred, additional dispositional orders were entered, and services were provided to respondents. On August 7, 2017, the trial court granted the petition to terminate respondents’ parental rights. On September 8, 2017, respondents appealed in the Co urt of Appeals, arguing, among ot her things, that the trial12 court erred during the adjudica tion hearing by failing to advis e respondents of their rights as required by MCR 3.971. Although the trial court certainly breached MCR 3.971 by not ad vising respondents of their rights, respondents failed to timely raise this issue. 7 Respondents should have raised this issue after the adju dication and the first disposit ional order entered on January 12, 2016. See former MCR 3.993(A)(1) (“[A]n order of dispositi on placing a minor under the supervision of the court or removing the minor from the hom e” is “appealable to the Court of Appeals by right[.]”). 8 But, instead, respondents waite d nearly two years to raise

7 Although the Department acknowledges that the trial court did not comply with MCR 3.971, contrary to the majority’s contention, the Department ha s not conceded that this violated respondents’ d ue-process rights.

8 The majority takes issue with Hatcher ’s statement that “[t]he respondent could have appealed the court’s exercise o f its statutory jurisdiction by challenging the sufficiency of the petition,” Hatcher , 443 Mich at 438, because, according to the majority, “[t]he e rror in the adjudication occurred after the preliminary hearing, when the probable-cause determination was made [and] the father could not have appealed an error that had yet to occur.” However, given that Hatcher cited MCR 5.993, which was the predecessor of our current MCR 3.993, immediately af ter the statement with which t he majority takes issue, it is more than reasonably clear that Hatcher was stating, in fact, that the respondent could have filed an appeal of right after the adjudication, i.e., after the court entered an “order of disposition placing a minor under the supervision of the court, ” former MCR 3.993(A)(1). The “sufficiency of the petition” remained at issue at that poi nt because the probate court presumably had relied on the a llegations in the petition as wel l as the parents’ stipulation that the child should become a temporary ward at the adjudicati on hearing. For these reasons, I do not believe Hatcher was nonsensically suggesting that the father should have appealed an error tha t had yet to occur. In addition, and again contrary to the majority’s contention, I do not believe that Hatcher suggested that “the father could have raised the adjudication e rror . . . in a motion for rehearing from the order terminating parental rights,” whic h, as the majority itself recognizes, would have been inconsistent with Hatcher ’s ultimate conclusion. Rather, Hatcher simply noted that “[a] parent is . . . entitled to request a re hearing not later than twenty days after an order terminating parental rights and remo ving the child from parental13 this issue. 9 They waited until after several dispositio nal hearings had been held, after several dispositional orders had be en entered, after several mo nths of services had been provided, after JF had been living in foster care for al most two years, and after their parental rights had been terminated nearly two years after adjudication.
Hatcher bars respondents’ collateral attack, as it should. Unlike the majority, I would not overrule Hatcher because if there is any realm of law in which finality is crit ical, it is with regard to child prote ctive proceedings. The Departm ent spent several years attempting (tragically without su ccess) to reunite respondents with their child. Parents who have been given several years to rehabilitate themselves and wh o have continually failed to do so should not be permitted to reinitiate the entire proce ss by challenging aspects of the adjudication that occurred at its very outset. It is simpl y not fair to children to require them to endure this process again. It is also not fair to pros pective adoptive parents. Given that the dispositional phase of a child protective proceeding m ay proceed for several

custody” and that this statutory safeguard ensures the parent t ime to “challenge a court’s exercise of its jurisdiction.” Hatcher , 443 Mich at 436. Terminating parental rights constitutes an exercise of the court’s jurisdiction and, as rec ognized by Hatcher , such an exercise can be challenged by re questing a rehearing not later than 20 days after an order terminating parental rights has been entered. Entering an orde r of adjudication also constitutes an exercise of juris diction and, as also recognized by Hatcher , such an exercise can be challenged by filing an appeal of right after the trial court enters its initial dispositional order; it, howeve r, cannot be challenged “years l ater in a collateral attack where a direct appeal was available.” Id . at 444.

9 Although our court rules at that time did not require the tria l court to inform-- much less repeatedly inform-- respondent s that they possessed an appeal o f right from the initial dispositional order, these rules did clearly provide for such a n appeal of right, see former MCR 3.993(A)(1), they did not p rovide for the additional and mu ch-delayed appeal of right sought in this case, and responde nts were represented by counse l who was certainly aware of all this.14 months, or even several years, it is important to ensure, as Hatcher does, that errors made during the adjudicative phase can not result in all that was acc omplished during the ensuing dispositional phase to be undone. Not only would this result i n wasted time, money, resources, and public and private effort, but most importantly it would risk disrupting whatever progress and rehabilita tion the children might have ma de during that time. Such a “do-over” would require th e entire process to begin all over-- there would have to be another adjudication h earing, another service plan w ould have to be created, more dispositional hearings would have to be held, respondents would have to be given further opportunities to comply with the service plan, and ulti mately, more likely than not, there would have to be another t ermination hearing. Yet, the e nd result would almost inevitably be the same-- responde nts’ parental rights would be terminated. The only difference would be that the process would have taken twice as long. Instead of the children having to go through this process, perhaps bouncing ar ound from foster-care home to foster-care home for two to t hree years, they would then hav e to endure this process for four to six years. That, in my j udgment, would be untenable an d unacceptable. The majority holds that Hatcher was wrongly decided becau se all of the cases on which it relied were, in the maj ority’s view, finely distinguis hable in the sense that they were all civil cases in which a second action was started to un do a prior final order, 10

10 For example, in Jackson City Bank & Trust Co v Fredrick , 271 Mich 538; 260 NW 908 (1935), this Court held that a divorce judgment could not be co llaterally attacked in a subsequent action to set aside a conveyance of real estate. In addition, in Life Ins Co of Detroit v Burton , 306 Mich 81; 10 NW2d 315 (1943), this Court held that an orde r reforming a surety bond could not be collaterally attacked in a subsequent action to set aside a sheriff’s sale. Finally, in Edwards v Meinberg , 334 Mich 355; 54 NW2d 684 (1952), this Court held that a judgment in an action in assumps it on a promissory note could15 whereas Hatcher and the present case are child protection cases in which the p arents are simply challenging a nonfinal order (the adjudication) after th e first final order (the termination order) has been entered. The majority is correct t hat generally a party appealing a final order in a case can raise issues relating to prior nonfinal orders in that
same case. See Green v Ziegelman , 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009) (“[A] party claiming an appeal of right from a final order is f ree to raise issues on appeal related to prior orders.”) (quot ation marks and citation omitte d). The majority is also correct that an adjudication/initial dispositional order is not a final order and that the first final order is the order terminating parental rights. See MCR 7.202(6)(a)(i) (defining “final order” as “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties”). Nonetheless, the majority is seriously incorrect in failing to recognize that although there is only one final orde r in a child protection case, there are at least two orders tha t are appealable by right, i.e ., the initial dispositional order and the order terminating parent al rights. Presumably, the ini tial dispositional order is appealable by right at least in significant respect so that err ors that have occurred during the adjudication can be remedied in a timely fashion. This, on ce again, is the appropriate time at which the parents should raise challenges they have reg arding the adjudication. A “collateral attack” is defined a s “[a]n attack on a judgment in any manner other than by action or proce eding, whose very purpose is to impeach or overturn the judgment; or, stated affirmatively, a colla teral attack on a judgment is an attack made by or in an

not be collaterally attacked in a subsequent action for damages for abuse of process in obtaining a writ of garnishment against the plaintiff’s wages t o satisfy the original judgment.16 action or proceeding that has an independent purpo se other than impeaching or overturning the judgment.” Black’s Law Dictionary (6th ed). Former MCR 3.993(A)(1) provided that “an order of disposition placing a minor under the supervision of the court” was appealable by right. This appeal by right of the order of disposition pla cing a minor under the supervision of the court is the proceeding whose “very purpose” is to overturn the decision to place a minor under the supervision of the court, i.e., the adjudication. In other words,
this moment is the time to directly attack the adjudication. An or der terminating parental rights is also appealable by right. Former MCR 3.993(A)(2). 11 However, this appeal by right has an “independent purpos e” other than overturning the a djudication, which is to overturn the trial court’s actual decision to terminate parenta l rights. In other words, the “very purpose” of this appeal i s to attack the termination, not the adjudication. Therefore, attacking the adjudication in the appeal of the termination ord er clearly constitutes a “collateral”-- rather than a direct-- attack. 12 The majority rationalizes its conc lusion on the grounds that th is Court has putatively adopted numerous “exceptions” to Hatcher ’s collateral-attack rule and, as a result, this Court should now simply overrule the decision. Once again, I d isagree. Indeed, I do not

11 The new court rules renumber this provision as MCR 3.993(A)(4) , but the language is unchanged.

12 Moreover, regardless of whether a posttermination challenge to the adjudication is labeled a collateral attack or a direct attack, the critical po int is that Hatcher simply requires a timely appeal of the adjudication, which both parties and the amici a gree benefits all involved, including parents, ch ildren, and prospective adoptive parents, as well as the public interests served by this process. Thus, even if one tak es issue with characterizing a posttermination challenge as a “c ollateral” challenge, as the m ajority does, that still does not mean that we should abolish the Hatcher rule, which again simply requires a timely appeal of the adjudication.17 believe that any of the cases cited by the majority actually ad opted any “exception” to the
Hatcher rule. In Sanders , 495 Mich at 401, for example, Hatcher did not apply because there had never been any adjudi cation of the respondent-father; the trial court had simply applied the “one-parent” doctrin e-- that is, the court entered dispositional orders affecting the rights of both parents based on an adjudication solely of t he mother. Given that the respondent-father obviously could not have appealed that adjudi cation because he was not a party, his challenge of that adjudication in his appeal after the termination of his parental rights was not a collateral attack. See In re Kanjia , 308 Mich App 660, 670; 866 NW2d 862 (2014) (“Because r espondent was never adjudicated, and in f act was not named as a respondent in the trial court’s order of adjudication, it is di fficult to see how he could have appealed that order of adjudication.”). Because Sanders did not involve a collateral attack,
Sanders could not have given rise to an “exception” to Hatcher ’s collateral-attack rule. And, unlike the respondent in Sanders (as well as in Kanjia ), respondents here were fully adjudicated by the trial court; nothing precluded them from dir ectly attacking the resultant adjudication order. 13

13 Similarly, In re Wangler , 498 Mich 911, 911 (2015), also could not have created an “exception” to Hatcher ; it simply held that because “t he court purported to issue dispositional orders without firs t adjudicating the respondent- mother, the respondentmother’s appeal should not be regarded as an impermissible coll ateral attack on jurisdiction.” In other words, Wangler held that because the respondent had never been formally adjudicated, given that her adjudication had been held in abeyance, her challenge of the adjudication proceeding following the termination of her parental rights was not a collateral challenge. Again, unlike the respondent in Wangler , respondents in the instant case were formally adjudicated; thus, their challenge of the ad judication following the termination of their parental rights was a collateral challenge

.18 In addition, in In re Hudson , 483 Mich 928 (2009), and In re Mitchell , 485 Mich 922 (2009), this Court simply pointed out errors that were made during the adjudications; these errors were not dispositive though because the trial cour t had also made errors during the disposition stage, e.g., “t he trial court committed clear e rror in finding that the Department of Human Services pre sented clear and convincing evi dence in support of the statutory grounds for terminating the respondent-mother’s paren tal rights.” Hudson , 483 Mich at 928. Therefore, I would hardly characterize these case s as having created “exceptions” to Hatcher

. 14 Accordingly, contrary to the majority’s assertion, this Court has not already carved out n umerous “exceptions” to the Hatcher rule, and for the reasons articulated throughout this di ssent, I would not begin to do so today. As noted earlier, the collateral-attack rule is a common-law ru le, and “when it comes to alteration of the common law, the traditional rule must prev ail absent compelling reasons for change.” Price , 493 Mich at 260. Respondents’ predominant concern regarding
Hatcher ’s collateral-attack rule is that it is unfair because trial co urts are not advising parents of their appellate right s following adjudication and th at despite not knowing their

14 In re Mays , 490 Mich 993, 994 (2012), also d id not create an “exception” to Hatcher because it merely held that “the trial court clearly erred in c oncluding that a s tatutory basis existed for termination of respo ndent’s parental rights.” Inde ed, Mays expressly stated that it was not addressing the validity of the adjudication because that issue had not been timely raised and expressly cited Hatcher in support of that position. Id . at 994 n 1. Similarly, In re Mason , 486 Mich 142; 782 NW2d 747 (2010), cannot be characterized as creating an “exception” to Hatcher because it merely held that the Department did not sufficientl y involve the respondent in the reunification process; it did not even address the adjudication process. Finally, In re Jones , 499 Mich 862 (2016), also canno t be characterized as creating an “exception” to Hatcher because all this Court did there was to enter an order consist ent with the parties’ joint motions requesting that we vacate the t rial court’s order terminating the respondent’s parental rights.19 appellate rights, the collateral- attack rule punishes responden ts for not appealing. However, this Court just recen tly (and correctly, in my judgmen t) amended the court rules to address that problem. Specifi cally, we just amended the cou rt rules to 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 poin t, they will not be able to challenge it after their parental rights have been terminated, with two exceptions. 15 At oral argument, respondents’ counsel supp orted this idea: “I wholehea rtedly agree with the court rule and the world you want, which is early decisions, appeal t hem right away, and it benefits everybody.” The Department and the Attorney General a lso indicated support for this idea. Given our recent court rule amendments, the majorit y has set forth no reason, let alone a “compelling reason,” to justify its present alteration of the common-law rule. The majority asserts that overruling Hatcher will not cause “ ‘practical, real-world dislocations.’ ” However, this is only true because of this Co urt’s recent court rule amendments. In other words, if this Court had not amended the court rules to essentially incorporate Hatcher into the court rules, the majority’s overruling of Hatcher would have caused “ ‘practical, real-world dislocations,’ ” because, as di scussed earlier, it would have allowed parents to bring untimely challenges regarding the adju dication that, if successful, would have required the process to begin all over again no matt er how much time had already elapsed attempting (uns uccessfully) to reunite the pare nts with their children.

15 Parents will still be able to challenge the adjudication in an appeal from the order terminating their parental right s if their rights were terminat ed at the initial dispositional hearing, which, as discussed ea rlier, is already allowed under SLH , 277 Mich App at 668- 669, and also if the court faile d to inform them of their right to appeal, MCR 3.971(C); MCR 3.972(G); MCR 3.973(H). I also support these exceptions.20 I am not sure why the majority feels compelled to overrule Hatcher given that the Court has now essentially incorporated it into our court rules. The majority says the following about Hatcher : Hatcher disrupts the careful balancing of interests in our juvenile co de by preventing judicial review of mer itorious claims of defects in the adjudication. That is, it prevents review of mistakes in the g overnment process that permanently separates a parent from a child. A pa rent’s only remedy under Hatcher is by way of an interlocutory appeal, disincentivizing him or her from timely cooperatin g with the Department and furt her delaying a final determination. Hatcher disserves parents, their children, and the state. It’s time to disavow it. Yet we have just incorporated Hatcher into our court rules by adopting a new rule that requires that parents timely rais e challenges regarding the adj udication in their appeal of right from the initial dispositional order. MCR 3.971(B)(8); M CR 3.972(F)(3); MCR 3.973(G)(4). I am not sure why the majority has these concerns regarding Hatcher but not regarding the amended court rules. Regardless, I believe that the majority’s concerns regarding Hatcher are unfounded. To begin with, Hatcher does not “prevent[] judicial review of meritorious claims”; rather, it merely requires that such claims be pursued in a tim ely manner, which is consistent with the interests of all affected parties, includin g the children themselves. In other words, there is an appropriate time to challenge the adju dication and an inappropriate time, and waiting until years afte r the adjudication, and until after parental rights have been terminated, fits squarely w ithin the latter category. Next, the majority contends that “[a] parent’s only remedy unde r Hatcher is by way of an interlocutory appeal, disincentivizing him or her from ti mely cooperating with the Department and further delaying a final determination.” But no thing about Hatcher21 prevents a parent from both challenging an adjudication and at the same time abiding by the court’s orders. There will be no disincentive, just as the re is no particular or obvious disincentive in the many cases i n which an interlocutory appeal is filed. Furthermore, it is certainly better to delay a final determination than it is to w ait until after that determination has been made and then require a complete “do-over.” Indeed, b oth parties at oral argument agreed that immediately appealing the adjudication ben efits everyone. As respondents’ counsel explained: “ [W]e don’t want adjudication a ppeals-- it’s not good for the parents I represent to have an adjudicatory error two years later. And then, we have to go back in time.” And as the Department further explained, wit nesses may be difficult to find, unavailable, or simply may not remember as well given the passage of time. For all these reasons, I wou ld not overrule Hatcher

. B. DUE PROCESS This Court asked the parties to address “if Hatcher was correctly decided, whether due process concerns may overri de the collateral bar rule . . . .” In re Ferranti , 502 Mich at 906. I would answer this inquiry in the negative. Hatcher expressly overruled Fritts v Krugh , 354 Mich 97; 92 NW2d 604 (1958), which “a ttempted to correct what it perceived to be a gross lack of procedural due process” by “permitt[ing] [a] collateral attack on the exercise of jurisdiction.” Hatcher , 443 Mich at 440. By overruling Fritts , despite recognizing that it involve d a due-process challenge, Hatcher made it altogether clear that it intended the collateral-attack rule to apply to due-process challenges.22 Almost any violation of court rules can be couched in terms of a constitutional dueprocess violation. 16 For example, in this case, the majority holds that the trial court’s failure to inform respondents of (a) the rights they would be waiving i f their plea admitting to the jurisdiction of the court was accepted, as is required by MCR 3 .971(B)(3); and (b) the consequences of their plea, as is required by MCR 3.971(B)(4), violated due process. See also, e.g., Hudson , 483 Mich at 929 (C ORRIGAN , J., concurring) (concluding that the trial court’s failure to advise the respondent of the consequences of her plea of admission, contrary to MCR 3.971(B), and fa ilure to appoint counsel at the respondent’s first appearance, contrary to MCL 712 A.17c, violated the respondent’s due-process rights). Accordingly, if this Court were to adopt a due-process exceptio n to the rule of Hatcher , that exception would effectively swallow the entire rule. In o ther words, adopting a dueprocess exception would be tantamount to overruling Hatcher

. Furthermore, not allowing parents to challenge the adjudication after parental rights have been terminated can hardly be said to violate their due-pr ocess rights because they have enjoyed a full opportunity t o challenge the adjudication, from which determination

16 See In re Sanders , 495 Mich at 458 (M ARKMAN , J., dissenting): Concerning due process, it is a lways possible to extend additio nal procedural rights and entitlement s to persons who come into con tact with the government, as criminal defendant s, public employees, consumers of public services, regulated parties, recipients of social-services bene fits, or parents of abused and neglected childre n. Additional hearings and addi tional appeals can always be convened, more protective rules of evidence can a lways be prescribed, and broader compliance with ever finer details of p rocess can always be required. There is simply no end to the argument tha t “fairness” requires something more, and th ere is little specificity in the Due Process Clause that either sustains o r refutes most such arguments.23 they possess an appeal of right. That they do not also enjoy t he right to challenge the adjudication after termination is simply a function of the fact that the state al so possesses an undeniable interest in seeki ng relief for the abused and neg lected child in a timely and reasonable manner. 17
C. PRESERVATION AND PLAIN ERROR This Court also asked the parties to address “what must a respo ndent do to preserve for appeal any alleged errors in the adjudication” and “by what standard should courts review the respondents’ challenge to the initial adjudication . . . .” In re Ferranti , 502 Mich at 906. I agree with the majority that “a party’s failure to t imely assert a right in the trial court generally means that any resulting error will be treated as ‘unpreserved’ if challenged on appeal,” and it is undisputed that respondents did not chall enge the adjudication at the trial court level. To preserve f or appeal an alleged error in the adjudication, the respondent would have had to have raised th e error at the adjudication hea ring. People v Pipes , 475

17 See Mathews v Eldridge , 424 US 319, 333, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976), which provides that the following factors should generally be c onsidered when determining “what process is due”: First, the private interest that will be affected by the offici al action; second, the risk of an erroneous deprivation of such interest through t he procedures used, and the probable value, if any, of additional or substitu te procedural safeguards; and finally, the Government’s interest, including t he function involved and the fiscal and administrative burdens that the add itional or substitute procedural requirement would entail. While respondents’ “private interest” in their parenthood is un deniably of the highest order, there is no obvious “risk of an erroneous deprivation” of this interest by the requirement that an appeal taken to rectify errors occurring during the adj udication be undertaken in a timely manner. Furthermore, the “Government’s interest” in the circumstances of the abused and neglected child is also of t he highest order.24 Mich 267, 277; 715 NW2d 290 (2006) (“In ord er to properly prese rve an issue for appeal, a defendant must raise objections at a time when the trial cour t has an opportunity to correct the error . . . .”) (quotation marks and citation omitted). As this Court explained: Any other conclusion would be c ontrary to the rule that defenda nts cannot “harbor error as an appellate parachute.” “The rule tha t issues for appeal must be preserved in the record by notation of objection is a sound one,” and that rule is totally evi scerated in situations, such as this, where defendants never address appealable issues with the trial court . [ Id . at 278 n 39 (citations omitted).] If the respondent does not prope rly preserve the issue, this Co urt should review the respondent’s challenge to the in itial adjudication for plain er ror. See Hudson , 483 Mich at 928 (“The trial court also committed plain error, People v Carines , 460 Mich 750, 763 (1999), in failing to . . . timely a ppoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3.915(B)(1), MCR 3.965(B)(5 ), and MCR 3.97 4(B)(3)(a)(i), an d in failing to advise the respondent that her plea could later be used in a proceedin g to terminate parental rights in violation of MCR 3.917(B)(4).”); Mitchell , 485 Mich at 922 (“[T]he trial court committed plain error, People v Carines , 460 Mich 750, 763 (1999), in failing to timely appoint counsel in violation of MCL 712A.17c(4) and (5), MCR 3. 915(B)(1), MCR 3.965(B)(5), and MCR 3.974(B)(3 )(a)(i), and in failing to advis e the respondent that his plea could later be used in a proceeding to terminate his paren tal rights in violation of MCR 3.971(B)(4).”).
In Carines , 460 Mich at 763, this Court held: To avoid forfeiture under the pl ain error rule, three requireme nts 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. The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings. “It is the defendant r ather than the25 Government who bears the burden of persuasion with respect to p rejudice.” Finally, once a defendant satisfi es these three requirements, a n appellate court must exercise its discretion in deciding whether to rever se. Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error “ ‘seriously af fect[ed] the fairness, integrity or public reputation of judicial proceeding s’ independent of the defendant’s innocence.” [Citations omitted; alteration in original.] In this context, it would be difficult for a respondent to prov e that an error affected the outcome of the lower court proceedings. For example, in the in stant case, the errors were that the trial court failed to inf orm respondents of (a) the ri ghts that they would be waiving if their plea admitti ng to the jurisdicti on of the court was ac cepted, as is required by MCR 3.971(B)(3); and (b) the consequences of their plea, as is requ ired by MCR 3.971(B)(4). Although these were certainly errors and were plain errors, I d o not understand how these errors conceivably affected the outcome of the proceedings. Re spondents have nowhere alleged that they would not have pleaded to the allegations in the petition if the trial court had properly advised them of the rights that they were waiving and/or of the consequences of their plea. 18 And even if they had so alleged, I do not understand how the outcome of the proceedings would have been a ltered because, at most, an ad judication trial would have been conducted and the trial court likely would have found agai n that one or more of the statutory grounds alleged in the petition had been proved by a preponderance of the evidence, i.e., that respondents were unfit. 19 There is simply no serious question that even

18 Furthermore, respondents were a ctually advised of many of thei r rights at the preliminary hearing on October 29, 2015, and were both represented by couns el at every phase of the proceedings.

19 The majority asserts that “[t]h is misses the point” because “t he constitutional deficiencies here are not forgiv en by what might have transpire d at trial.” Respectfully, I believe it is the majority that e rrs because it is well establi shed that parties are not entitled26 absent respondents’ plea, the trial court would have adjudicate d respondents, the dispositional phase would have pro ceeded in the same way, and r espondents’ parental rights would have been terminated. Indeed, respondents do not even dispute the sufficiency of the evidence in support of the adjudication or of the termin ation of their parental rights. Therefore, in my view, although the majority overrules Hatcher , respondents are still not entitled to relief.
D. HOME VISIT
This case also involves two non- Hatcher issues. The first such issue we asked the parties to address is “whether a trial court is permitted to vi sit a respondent’s home to observe its condition, and, if so , what parameter s should apply to doing so[.]” In re
Ferranti , 502 Mich at 906. The parties agree that a trial court is not permitted to visit a respondent’s home to observe its condition. MCR 2.507(D), the rule allowing under certain circumstances the court’s view of “property or a place where a material event occurred,” is not among the rule s applicable to child protectiv e proceedings. MCR 3.923(A), which does apply, provides: If at any time the court believes that the evidence has not bee n fully developed, it may: (1) examine a witness, (2) call a witness, or

to relief for unpreserved constitutional errors unless they can establish that “the error affected the outcome of the lower court proceedings,” Carines , 460 Mich at 763, and the latter determination is necessarily made by comparing the flawe d proceeding with a hypothetical unflawed proceeding , i.e., by inquiring as to “wha t might have transpired at trial.”27 (3) adjourn the matter before the court, and (a) cause service of process on additional witnesses, or (b) order production of other evidence.
Note that the court rule does not allow the court to view a hom e. For these reasons, I agree with the parties and the Court of Appeals that the trial court erred by visiting respondent’s home. However, I further agree with the Court of Appeals that this er ror was harmless. Respondents did not object to t he error, and therefore the plai n-error test applies. See
Carines , 460 Mich at 763-764. Even assu ming that there was error and that the error was plain, respondents are not entitle d to relief because they were not prejudiced as a result of the error. As the Court of Appeals explained: [G]iven the trial court’s reliance on the testimony of witnesse s who described both the historical condition of t he home, the services provide d, and the current condition of the home, as well as the effect of the con dition of the home on JF’s medical condition, it does not appear that the tri al court’s visit to the home affected the outcome of the proceedings. The court found that “the many professionals unanimous ly agreed that the house was u nhygienic and was probably not going to improve” even though the conditio n of the home was “not as atrociously bad as it was.” The trial court’s lone reference to the court’s viewing of the home was that it is not where a person with [spina bifida] will thrive. [JF] chooses to crawl for locomotion when she is in the home and the home will never be clean en ough for her to avoid infections

. This finding is amply supporte d by the testimony of the witness es with respect to the condition of the home and its effect on JF’s med ical condition, and the trial court’s statement regarding its view of the home reflects that the court’s viewing of the home confirmed the witnesses’ testimony. Under these circumstances, respondents have failed to demonstrate tha t the trial28 court’s error in visiting the ho me affected their substantial r ights. [ Ferranti , unpub op at 8-9.] I agree with the Court of Appeals.
E. INTERVIEW OF THE CHILD
The other non- Hatcher issue we asked the parties to address concerns “whether a trial court may interview a child who is the subject of child p rotective proceedings in chambers, and, if so, what parameters should apply to doing so. ” In re Ferranti , 502 Mich at 906. Again, the parties agree that a trial court may not in terview in chambers a child who is the subject of child protective proceedings. See In re HRC , 286 Mich App 444; 781 NW2d 105 (2009). While the court rules permit the use of in camera interviews for the limited purpose of determining a child’s parental preference in child custody cases, see MCR 3.210(C)(5), they do not permit the use of in camera interviews in child protective

cases. 20 Accordingly, the trial court erred by conducting an in camera interview of the child. However, I agree with the Court o f Appeals that respondents wai ved this issue. At one point, respondent-father’s c ounsel asked respondent-father, “Are you asking the Court to interview [JF] prior to making a decision on termination?” a nd respondent-father answered, “I would ask that, yes.” Subsequently, after both pa rties indicated that they had

20 Perhaps this is because while the Child Custody Act, MCL 722.2 1 et seq ., requires the trial court in custody cases to take a child’s preference into consideration as long as the court considers the child to be of sufficient age to express a preference, MCL 722.23(i), the juvenile code does not require a trial court to consider a child’s preference in a termination-of-parental-rights case. This may have something t o do with the nature of these proceedings. A termination of parental rights is permane nt, whereas a custody order can be modified.29 no further proofs, the trial judge indicated that he was consid ering speaking with JF but admitted that there was no statute that provides for such an in terview, and he asked the parties if they had any objectio ns. In response, respondent-fa ther’s counsel stated, “I would actually request it,” and respon dent-mother’s counsel stated, “ We encourage the court to talk with [JF].” I also believe the parties were well aware that the judge was p lanning on speaking with JF in chambers. There was never any mention of her testif ying in court; rather, the matter was always stated in terms of the judge “interviewing,” “speaking with,” and “talking with” JF. Furthermore , the guardian ad litem asked th e judge if he would be interviewing JF “here at the cour t or at the Lutheran [family s ervices office]?” And the judge responded, “[L]et’s go to the back chambers.” In light o f these statements, I believe it was reasonably clear that the judge planned to interview JF off the record in his chambers, and the parties not only did not object, but they affirmatively encouraged the judge to talk with JF. Therefore, the issue was waived, and “[o]ne who waive s his rights under a rule may not then seek appe llate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000) (quotation marks and citation omitted).
IV. CONCLUSION Because I believe the Court of Appeals correctly held that: (a) respondents cannot collaterally attack the instant a djudication after their parent al rights have been terminated, (b) respondents waived the issue pertaining to the interview of the child, and (c) any error in visiting respondents’ home was harmless, I would affirm the judgment of the Court of30 Appeals. In addition, and unlike the majority, I would not ove rrule Hatcher , even if in light of our new court rules, the impact of so doing would only be upon this single case, this single child, JF alone. Just as the new court rules reaso nably balance the rights of parents and children, and afford a clear opportunity for a fres h start for the abused or neglected child, so too did the pr ior court rules; it is not ri ght that JF alone should be made subject to a third court rule regime, an altogether singular regime, a regime tha t does not, in my judgment, reasonably balan ce the interests of parent and child, a regime in which, before JF ’s fresh start can begin, a lengt hy re-do of an already lengthy and fair legal process must first proceed because of the failure of respondents-- alre ady deemed by a court of law to have acted neglect fully-- to have abided by the law in pursu ing a timely appeal, much less to have corrected their maltreatment of JF. Thus, in a re alm of the law in which reasonable expedition of decisio n-making has always been though t by the judiciary to be paramount, the majority imposes i n this single case a process t hat is reflective of our legal system at its most unnecessarily drawn out and dilatory. For a ll the reasons set forth in this opinion, I respectfully dissent. 21

Stephen J. Markman Brian K. Zahra

C AVANAGH , J., did not participate in the disposition of this case becau se the Court considered it before she assumed office.

21 Notably, the majority overrules Hatcher , reverses the judgment of the Court of Appeals, and remands to the trial court fo r further proceedings without providing any guidance concerning what number of years of further proceedings are requ ired. The majority fails even to make clear whether JF can remain in foster care or whet her she, a child suffering from spina bifida and chronic kidney disease, must now be retur ned to respondents’ home, one in which she has already su ffered considerably from medical and physical neglect.